The Supreme Court and voluntary integration

Harvard Law Review

Volumn 121, Issue 1, 2007, Pages 131-157

  Ryan, James E ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 38949186110     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (156)

1. 127 S. Ct. 2738 (2007).
2. Id. at 2746.
3. See id. at 2759-61.
4. See id. at 2755-59, 2767-68 (opinion of Roberts, C.J.).
5. See id. at 2787 (Thomas, J., concurring).
6. Id. at 2791-93 (Kennedy, J., concurring in part and concurring in the judgment).
7. See id. at 2800-37 (Breyer, J., dissenting).
8. See id. at 2797-800 (Stevens, J., dissenting).
9. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
10. See, e.g., Parents Involved, 127 S. Ct. at 2767 (opinion of Roberts, C.J.) (mentioning, while debating the meaning of Brown, that "[t]he parties and their amici debate which side is more faithful to the heritage of Brown").
11. For more detailed discussion and support, see infra section II.B, pp. 142-44.
12. Brown v. Bd. of Educ., 349 U.S. 294 (1955).
13. For precise figures, see infra p. 145.
14. See infra section I.B.3, pp. 138-39; infra Part III, pp. 144-49.
15. See Parents Involved, 127 S. Ct. at 2755 (opinion of Roberts, C.J.) (equating racial integration with unconstitutional racial balancing); id. at 2767-68 (arguing that the plans at issue were inconsistent with Brown).
16. Id. at 2756.
17. See id. at 2761.
18. Id. at 2767.
19. Id. at 2768.
20. See id. at 2784-88 (Thomas, J., concurring).
21. Id. at 2770 n.3.
22. Id. at 2791 (Kennedy, J., concurring in part and concurring in the judgment).
23. Id. at 2797 (Stevens, J., dissenting).
24. Id. at 2800.
25. Id. (Breyer, J., dissenting).
26. Id.
27. Id. at 2835.
28. See id. at 2759-60 (majority opinion).
29. See id.
30. Id. at 2751-54.
31. This makes the point of this part of the Court's opinion hard to fathom. Why discuss two compelling interests that are not relevant, refuse to say anything more, and then strike down the plans because they are not narrowly tailored? The Court should have said either more or less.
32. Parents Involved, 127 S. Ct. at 2792 (Kennedy, J., concurring in part and concurring in the judgment).
33. Id. at 2797. This interest is potentially inconsistent with an interest in broad-based diversity because of the relevant narrow tailoring criteria. One would think a school pursuing a broadly diverse student body would have to consider other factors than race when assigning students, whereas a school seeking to overcome racial isolation would be able to focus more directly (and exclusively) on race. For further discussion, see infra p. 138.
34. Parents Involved, 127 S. Ct. at 2792 (Kennedy, J., concrrring in part and concurring in the judgment).
35. Id.
36. Id. at 2793.
37. 539 U.S. 306 (2003).
38. See id. at 334-43.
39. Id. at 337.
40. See James E. Ryan, Voluntary Integration: Asking the Right Questions, 67 OHIO ST. L.J. 327, 335-45 (2006).
41. See Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457 (1897).
42. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); see John C. Jeffries, Jr., Bakke Revisited, 2003 SUP. CT. REV. 1, 10 ("Even though no one shared Powell's position, it nevertheless ended up defining the kind of affirmative action that a majority of the Court was prepared to uphold.").
43. 402 U.S. 1 (1971).
44. See Parents Involved, 127 S. Ct. at 2752 n.10. The Court in Swann indicated that "school authorities" have "broad discretionary powers" to determine that "each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole." Swann, 402 U.S. at 16.
45. On whether the statement has precedential weight, compare Parents Involved, 127 S. Ct. at 2762 (opinion of Roberts, C.J.), with id. at 2811-17 (Breyer, J., dissenting).
46. See, e.g., id. at 2811-17 (Breyer, J., dissenting) (documenting widespread reliance on Swann's endorsement of voluntary integration, including an in-chambers opinion by then-Justice Rehnquist).
47. See, e.g., Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996).
48. See, e.g., Tamar Lewin, Across U.S., a New Look at School Integration Efforts, N.Y. TIMES, June 29, 2007, at A25.
49. Parents Involved, 127 S. Ct. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
50. See id. at 2793.
51. See Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d 738, 752 (2d Cir. 2000) ("If reducing racial isolation is -standing alone -a constitutionally permissible goal... then there is no more effective means of achieving that goal than to base decisions on race.").
52. Parents Involved, 127 S. Ct. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
53. See id. at 2792-93.
54. See id. at 2790.
55. See, e.g., J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 61-82 (1979).
56. 391 U.S. 430 (1968).
57. See WILKINSON, supra note 55, at 78-114.
58. 391 U.S. at 441-42.
59. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 29-31 (1971).
60. 413 U.S. 189 (1973).
61. Id. at 200.
62. See, e.g., James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 275-84 (1999);
63. Franklin D. Wilson & Karl E. Taeuber, Residential and School Segregation: Some Tests of Their Association, in THE DEMOGRAPHY OF RACIAL AND ETHNIC GROUPS 51, 57-58 (Frank D. Bean & W. Parker Frisbie eds., 1978).
64. 418 U.S. 717 (1974).
65. Id. at 745.
66. For a good example of this dynamic and an insightful discussion, see Bradley v. Richmond School Board, 338 F. Supp. 67, 81-110 (E.D. Va. 1972), rev'd, 462 F.2d 1058 (4th Cir. 1972), aff'd by an equally divided Court, 412 U.S. 92 (1973).
67. See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 318 (1994).
68. For further discussion of the points raised in this paragraph, see, for example, id. at 289-318; WILKINSON, supra note 55, at 140-46, 240-43; and Ryan, supra note 62, at 275-84.
69. But see United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987) (finding that the city's segregative housing practices contributed to school segregation). Nonetheless, "Yonkers represents the first and only case in which a district court has held municipal officials liable for intentionally segregating local schools, and required them to cure school segregation." Michael H. Sussman, Discrimination: A Unitary Concept, 80 MINN. L. REV. 875, 877 (1996).
70. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22 (1971).
71. See Milliken v. Bradley, 418 U.S. 717, 724, 728 n.7 (1974).
72. See, e.g., Freeman v. Pitts, 503 U.S. 467, 495-97 (1992).
73. Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977).
74. Id. at 279-90.
75. For elaboration and examples of the points made in this psragraph, see Ryan, supra note 62, at 261-66.
76. 498 U.S. 237 (1991).
77. 503 U.S. 467 (1992).
78. 515 U.S. 70 (1995).
79. See Dowell, 498 U.S. at 248-51; Freeman, 503 U.S. at 485-500; Jenkins, 515 U.S. at 98-103.
80. See, e.g., James E. Ryan, A Constitutional Right to Preschool?, 94 CAL. L. REV. 49, 49-56 (2006) (discussing access to publicly provided preschools);
81. James E. Ryan, The Perverse Incentives of the No Child Left Behind Act, 79 N.Y.U. L. REV. 932, 937-44 (2004) (discussing the standards and testing movement);
82. James E. Ryan & Michael Heise, The Political Economy of School Choice, III YALE L.J. 2043, 2058-78 (2002) (discussing school finance reform and various public and private school choice programs).
83. RICHARD D. KAHLENBERG, THE CENTURY FOUND., RESCUING BROWN V. BOARD OF EDUCATION: PROFILES OF TWELVE SCHOOL DISTRICTS PURSUING SOCIOECONOMIC SCHOOL INTEGRATION (2007), available at http://www.tcf.org/ publications/education/districtprofiles.pdf.
84. The No Child Left Behind Act of 2001, for example, states as its purpose "to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education" and specifically includes as a goal "closing the achievement gap between high- and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers." 20 U.S.C. § 6301 (Supp. IV 2004).
85. See, e.g., STEPHEN MACEDO, DIVERSITY AND DISTRUST CIVIC EDUCATION IN A MULTICULTURAL DEMOCRACY 45-54 (2000);
86. John C. Jeffries, Jr., & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279, 316-18 (2001).
87. See MACEDO, supra note 82, at 45-54, 88-94; DIANE RAVITCH, THE TROUBLED CRUSADE 43-81 (1983).
88. See, e.g., James Forman, Jr., The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics, 54 UCLA L. REV. 547, 550-52 (2007) (describing a shift in rationale for vouchers away from values-based claims to claims about academic achievement);
89. cf. Martha Minow, Surprising Legacies of Brown v. Board, in LEGACIES OF BROWN: MULTIRACIAL EQUITY IN AMERICAN EDUCATION (Dorinda J. Carter, Stella M. Flores & Richard J. Reddick eds., 2004) (describing how modern education reforms, such as those involving gender equity, language minorities, and special education, do not automatically equate integration with equal educational opportunity).
90. See, e.g., Brief of 553 Social Scientists as Amici Curiae in Support of Respondents at 7-8, Parents Involved, 127 S. Ct. 2738 (Nos. 05-908 & 05-915), 2006 WL 2927079; Brief of the National Education Association et al. as Amicus Curiae in Support of Respondents at 25-30, Parents Involved, 127 S. Ct. 2738 (Nos. 05-908 & 05-915), 2006 WL 2927085.
91. See Brief of 553 Social Scientists as Amici Curiae in Support of Respondents, supra note 85, at 5-9; Brief of National Education Association et al. as Amicus Curiae in Support of Respondents, supra note 85, at 15-25.
92. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
93. For example, the Court's latest foray into the realm of school policy involved a student banner reading "BONG HITS 4 JESUS." See Morse v. Frederick, 127 S. Ct. 2618 (2007) (concluding that student could be suspended for holding such a banner at a school-sponsored event).
94. See, e.g., Tamar Lewin, Across U.S., A New Look at School Integration Efforts, N.Y. TIMES, June 29, 2007, at A25 (hundreds);
95. Nancy Zuckerbrod, Schools To Re-examine Racial Integration, ASSOCIATED PRESS, June 29, 2007, available at http://www.usatoday.com/news/ washington/2007-06-28-69791304_x.htm (one thousand); NAACP, Briefing Points: Supreme Court School Desegregation Cases, http://www.naacp.org/advocacy/education/Information/ (last visited Sept. 16, 2007) (more than one thousand).
96. NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC, COMMON CORE OF DATA, PUBLIC ELEMENTARY/SECONDARY SCHOOL UNIVERSE SURVEY, 2004-05 (2007).
97. THOMAS D. SNYDER, U.S. DEP'T OF EDUC, NUMBER OF PUBLIC SCHOOL DISTRICTS BY PERCENT MINORITY ENROLLMENT OF DISTRICT (2004) (on file with the Harvard Law School library). Three out of four districts have an enrollment that is at least 75% white or 75% minority, in s national public school population that is 57% white and 42% minority. Id.
98. The only two districts in the largest ten school districts are Broward County, Florida, and Clark County, Nevada, with white populations of 32.6% and 39.5%, respectively. See BROWARD COUNTY PUBLIC SCHOOLS FACT SHEETS (2006), http://www.broward.k12. fl.us/research_evaluation/memo/BCPSFACTSheets0506.pdf;
99. CLARK COUNTY SCH. DIST., ACCOUNTABILITY REPORTS 3 (2006), http://ccsd.net/schools/ acc_pdfs_2006/districtAcc2006.pdf.
100. See, e.g., Charles T. Clotfelter, Public School Segregation in Metropolitan Areas, 75 LAND ECON. 487, 502 (1999);
101. Sean F. Reardon, John T. Yun & Tamela McNulty Eitle, The Changing Structure of School Segregation, 37 DEMOGRAPHY 351, 362 (2000);
102. Steven G. Rivkin, Residential Segregation and School Integration, 67 SOC. EDUC 279, 291 (1994).
103. See, e.g., EDUC COMM'N OF THE STATES, OPEN ENROLLMENT: SO-STATE REPORT (2007), available at http://mb2.ecs.org/reports/Report.aspx?id-268.
104. See Alan J. Borsuk, Integration Plans Rejected, MILWAUKEE J. SENTINEL, June 29, 2007, st 1, available at http://www.jsonline.com/story/index.aspx?id-626155;
105. Laura Crimaldi, Metco Fate Unclear as Foe Mulls Legal Fight, BOSTON HERALD, July 8, 2007, at 4, available at http://townonline.com/cambridge/education/x1569923221.
106. See, e.g., James E. Ryan & Michael Heise, The Political Economy of School Choice, III YALE L.J. 2043, 2066 (2002). Massachusetts, for example, a state with a much-heralded and comparatively successful interdistrict choice plan, specifically caps transfers at two percent of students. MASS. GEN. LAWS ch. 76, § 12B (2006).
107. For a discussion of estimates and examples of school districts with choice plans, see Lewin, supra note 89 (referencing Seattle, Louisville, Lynn (Mass.), Rochester (N. Y.), Los Angeles, Berkeley, and "about 20 districts" in Massachusetts).
108. This is because it is not clear how robust or widespread the consideration of race is in the twenty or so unnamed districts in Massachusetts that take race into account when assigning students. See id.
109. Id.
110. Id.
111. One of the ironies of Justice Kennedy's opinion is that he endorses race-neutral measures, like changing attendance zone boundaries, which are more intrusive and coercive than school choice plans that take some (explicit) account of race. See Parents Involved, 127 S. Ct. at 2792 (Kennedy, J., concurring in part and concurring in the judgment).
112. See EDUC OPPORTUNITIES SECTION, DEP'T OF JUSTICE, PENDING SCHOOL DISTRICTS AND STATES OPERATING UNDER DESEGREGATION CASES TO WHICH THE UNITED STATES IS A PARTY (2007).
113. See supra p. 141.
114. See Parents Involved, 127 S. Ct. 2738, 2830 (Breyer, J., dissenting) (suggesting that "federal courts would rightly hesitate to find unitary status if the consequences of the ruling were so dramatically disruptive").
115. Court decrees do not seem subject to the same narrow tailoring requirements as voluntary integration plans; none of the Justices suggests, for example, that courts remedying de jure segregation must first employ race-neutral means. Why courts need not narrowly tailor their plans in order to achieve a compelling interest, while legislatures must, is never explained.
116. See, e.g., Wessmann v. Gittens, 160 F.3d 790, 792-94 (ist Cir. 1998) (discussing the competitive admissions process for Boston's three "examination" public high schools, including the famous Boston Latin School).
117. Adam Liptak, The Same Words, But Differing Views, N.Y. TIMES, June 29, 2007, at A24.
118. See, e.g., id. (quoting lawyers who worked on Brown, including Jack Greenberg, who suggested that Parents Involved represents "the rebirth of massive resistance in more acceptable form").
119. See, e.g., Freeman v. Pitts, 503 U.S. 467, 500-07 (1992) (Scalia, J., concurring).
120. See, e.g., United States v. Lopez, 514 U.S. 549 (1995).
121. See, e.g., Posting of William McKenzie to Dallas Morning Views, http://dallasmorningviews.beloblog.com/archives/2007/03/john_roberts_da.html (March 8, 2007, 17:29 CST) (describing a speech by Chief Justice Roberts in which he extolled the virtues of judicial restraint).
122. See Milliken v. Bradley, 418 U.S. 717, 741-42 (1974).
123. See Bd. of Educ. of Okla. City v. Dowell, 498 U.S. 237, 248 (1991).
124. See Freeman, 503 U.S. at 489-90 (1992).
125. See Missouri v. Jenkins, 515 U.S. 70, 99 (1995).
126. See Parents Involved, 127 S. Ct. at 2824 (Breyer, J., dissenting).
127. See, e.g., Randy Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. CIN. L. REV. 7, 9, 14 (2006).
128. See Parents Involved, 127 S. Ct. at 2782 n.19 (Thomas, J., concurring) (criticizing, in a brief footnote, the dissent's "half-hearted[]" critique of the "historical underpinnings of the color-blind Constitution").
129. See Morse v. Frederick, 127 S. Ct. 2618, 2629-36 (2007) (Thomas, J., concurring).
130. Id. at 2630 (arguing that because 19th-century school teachers did not respect a student's right to speak, the First Amendment should not apply to public school students).
131. On "expectations" originalism and its alternatives, see, for example, James E. Ryan, Does It Take a Theory? Originalism, Active Liberty, and Minimalism, 58 STAN. L. REV. 1623, 1628-31 (2006).
132. See, e.g., Brief of Historians as Amici Curiae in Support of Respondents at 3-4, 21-24, Parents Involved, 127 S. Ct. 2738 (Nos. 05-908 & 05-915).
133. See Parents Involved, 127 S. Ct. at 2767-68 (opinion of Roberts, C.J.).
134. See id. at 2782-88 (Thomas, J., concurring).
135. See id. at 2767 (opinion of Roberts, C.J.); id. at 2782 (Thomas, J., concurring).
136. Id. at 2768 (opinion of Roberts, C.J.).
137. See, e.g., Robert L. Carter, Reexamining Brown Twenty-Five Years Later: Looking Backward into the Future, 14 HARV. C.R.-C.L. L. REV. 615, 616-17 (1979); Liptak, supra note 107, at A24.
138. See, e.g., Martha Minow, School Finance: Does Money Matter?, 28 HARV. J. ON LEGIS. 395, 395-96 (1991) (describing the predicate of early NAACP work as the principle that "green follows white: money for schooling follows the white students").
139. See Robert L. Carter, Public School Desegregation: A Contemporary Analysis, 37 ST. LOUIS U. L.J. 885, 885 (1993).
140. Liptak, supra note 107, at A24 (quoting Coleman).
141. Compare Parents Involved, 127 S. Ct. at 2762 (opinion of Roberts, C.J.) (criticizing dissent for relying on dicta from Swann), with id. at 2767 (arguing that the "heritage" of Brown requires colorblindness in student assignments).
142. See, e.g., MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 324-43, 389-421 (2004).
143. See, e.g., MATTHEW D. LASSITER, THE SILENT MAJORITY: SUBURBAN POLITICS IN THE SUNBELT SOUTH 148-49 (2006).
144. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971).
145. Parents Involved, 127 S. Ct. at 2762 (opinion of Roberts, C.J.).
146. Swann, 402 U.S. at 16. The plurality opinion also suggests that the Court in Swann endorsed the objective of voluntary integration but did not endorse the explicit use of race as the means to achieve that objective. See Parents Involved, 127 S. Ct. at 2762 (opinion of Roberts, C.J.). Given that Chief Justice Burger endorsed the objective of a "prescribed ratio" of white and black students that reflects "the proportion of the district as a whole," the notion that the Court would only have allowed school officials to use race-neutral means to achieve this precise outcome is, depending on one's mood or perspective, hilarious, preposterous, or Orwellian.
147. Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
148. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
149. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193-96 (9th Cir. 2005) (Kozinski, J., concurring), rev'd, 127 S. Ct. 2738.
150. Id. at 1196; accord Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27-29 (1st Cir. 2005) (Boudin, C.J., concurring).
151. See Parents Involved, 127 S. Ct. at 2755-59 (opinion of Roberts, C.J.) (equating voluntary integration with racial balancing, which the plurality concludes is always an impermissible goal).
152. See id. at 2792-97 (Kennedy, J., concurring in part and concurring in the judgment).
153. See id. at 2755-59 (opinion of Roberts, C.J.); id. at 2789-92 (Kennedy, J., concurring in part and concurring in the judgment).
154. See Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003) (citing views of military and business leaders regarding the importance of diversity).
155. Cf. Parents Involved, 426 F.3d at 1196 (Kozinski, J., concurring) (noting that although "it's tempting to adopt rules of law that give us the ultimate say on hotly contested political questions," elected school officials "understand the realities of the situation far better than we can").
156. Parents Involved, 127 S. Ct. at 2767 (opinion of Roberts, C.J.).