Race at the pivot point: The future of race-based policies to remedy de jure segregation after parents involved in community schools

Harvard Civil Rights-Civil Liberties Law Review

Volumn 43, Issue 2, 2008, Pages 491-538

  Fischbach, Jonathan ^a   Rhee, Will ^b   Cacace, Robert ^c  

^a United States Department of Justice   (United States)

^b WEST VIRGINIA UNIVERSITY   (United States)

^c Law Clerk for A United States District Judge

Author keywords

[No Author keywords available]

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EID: 46949088020     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (409)

1. STEPHEN KING & PETER STRAUB, THE TALISMAN 562 (1984).
2. See infra text accompanying note 39.
3. 127 S. Ct. 2738 (2007).
4. This Article defines "race-based policies" as policies implemented by a school system that treat "each student in different fashion solely on the basis of a systematic, individual typing by race." Id. at 2792 (Kennedy, J., concurring). In contrast, "race-conscious policies" are defined to include policies that account for race as one of several factors in a holistic, individualized analysis and "do not lead to different treatment based on a classification that tells each student he or she is to be defined by race." Id. "Race-neutral policies" are defined as school system policies that do not use race as a factor.
5. See, e.g., ARTHUR COLEMAN ET AL., NOT BLACK AND WHITE: MAKING SENSE OF THE UNITED STATES SUPREME COURT DECISIONS REGARDPNG RACE-CONSCIOUS STUDENT ASSIGNMENT PLANS 10 (Sept. 2007), available at http://www.collegeboard.com/prod_downloads/prof/not-black- white-collegeboard.pdf (stating that PICS "provide[s] direction for school districts on the voluntary use of race in student assignment, just as [PICS] raisefs] important, unanswered questions.").
6. See, e.g., id. at 9;
7. see also Heather Gerken, Justice Kennedy and the Domains of Equal Protection, 121 HARV. L. REV. 104 (2007);
8. Linda Greenhouse, A Tale of Two Justices, 11 GREEN BAG 2D 37 (2007);
9. Michael Kaufman, PICS in Focus: A Majority of the Supreme Court Reaffirms the Constitutionality of Race-Conscious School Integration Strategies, 35 HASTINGS CONST. L.Q. I, 9-12 (2007);
10. James Ryan, The Supreme Court and Voluntary Integration, 121 HARV. L. REV. 131, 135-40 (2007);
11. J. Harvie Wilkinson III, The Seattle and Louisville School Cases: There is No Other Way, 121 HARV. L. REV. 158, 169-75 (2007).
12. 347 U.S. 483 (1954), supplemented, (Brown II) 349 U.S. 294 (1955) (collectively "Brown").
13. The "majority opinion" refers to the portions of Chief Justice Roberts' "plurality opinion" joined by Justice Kennedy to form the majority. See infra text accompanying notes 139-141;
14. see also PICS, 127 S. Ct. at 2741 ("THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II, III-A, and III-C").
15. PICS, 127 S. Ct. at 2746.
16. "Affirmative action" is defined as those "[e]fforts that take into account membership in protected groups (race, sex, disability, and national origin) to remedy and prevent discrimination in the awarding of admission to universities and professional schools, jobs, and other social goods and services." JEFFREY A. RAFFEL, HISTORICAL DICTIONARY OF SCHOOL SEGREGATION AND DESEGREGATION: THE AMERICAN EXPERIENCE 6 (1998).
17. See generally James Jones, Jr., The Rise and Fall of Affirmative Action, in RACE IN AMERICA: THE STRUGGLE FOR EQUALITY 345-69 (Herbert Hill & James Jones, Jr., eds., 1993).
18. The United States Commission on Civil Rights recently sought to determine the number of active desegregation orders: Although over fifty years have passed since Brown, many school districts are still subject to school desegregation court orders. As of May 2007, the United States remains a party to 266 suits in which school desegregation court orders are in effect. There are, of course, many more such cases to which the United States is not a party, but no comprehensive list of these cases currently exists. Moreover, many of the cases were initiated in the late 1960s and early 1970s and the original players have either moved on or in some cases passed away. In such instances, not even the school districts understand the scope of the court orders that bind them and little reliable information exists that can provide a complete picture as to the nature of ongoing court-ordered desegregation. In addition to school districts that are parties to litigation concerning desegregation, many school districts have entered into agreements with the Department of Education's Office for Civil Rights to implement desegregation plans, also known as Form 441-B plans. U.S. COMM'N. ON CIVIL RIGHTS, BECOMING LESS SEPARATE?: SCHOOL DESEGREGATION, JUSTICE DEPARTMENT ENFORCEMENT, AND THE PURSUIT OF UNITARY STATUS 12 (Aug. 2, 2007) (citations omitted).
19. See, e.g., Derrick Bell, Jr., The Unintended Lessons in Brown v. Board of Education, 49 N.Y.L. SCH. L. REV. 1053, 1053 (2005) (concluding "[the] Brown decision, as far as the law is concerned, is truly dead and beyond resuscitation.");
20. David Tatel, Judicial Methodology, Southern Desegregation, and the Rule of Law, 79 N.Y.U. L. REV. 1071, 1076-77 (2004) (criticizing recent Supreme Court desegregation decisions as "flawed in multiple ways, but particularly with respect to their departure from die principles of stare decisis") (Judge Tatel is a Circuit Judge on the U.S. Court of Appeals for the District of Columbia Circuit);
21. Mark Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 How. L.J. 767, 779 (1996) (concluding historians will later interpret the most recent Supreme Court school desegregation decisions as evidence that the "Court agreed with a majority of white Americans: 'We've done enough,' the justices said").
22. See, e.g., Huch v. United States, 439 U.S. 1007, 1012 (1978) (Rehnquist, J., dissenting) (dissenting from the decision to deny petitions for writs of certiorari and arguing that "District Court appears condemned to a fate akin to that of Sisyphus" in supervising a school desegregation case); United States v. Texas, 457 F.3d 472, 475 (5th Cir. 2006) (reversing the district court's judgment and vacating the injunction); San Francisco NAACP v. San Francisco Unified Sch. Dist. (Ho), 413 F. Supp. 2d 1051, 1063 (N.D. Cal. 2005) (denying joint motion to extend the consent decree).
23. As Justice Thomas asserted in PICS, desegregation orders "are not forever insulated from constitutional scrutiny. Rather, 'such powers should have been temporary and used only to overcome the widespread resistance to the dictates of the Constitution.' " Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738 2771 n.6 (2007) (citation omitted).
24. De facto desegregation refers to voluntary government efforts to reduce the effects of social segregation and improve racial diversity. See infra text accompanying notes 92-93.
25. De jure desegregation refers to constitutionally compelled government action to dismantle government-sponsored segregation. See infra text accompanying notes 28-29.
26. See infra text accompanying notes 144-145.
27. See PICS, 127 S. Ct. at 2795-96;
28. see also infra text accompanying notes 102-110, 261-263.
29. See infra text accompanying notes 95-98.
30. See, e.g., Lee v. Lee County Bd. of Educ, 476 F. Supp. 2d 1356, 1361 (M.D. Ala. 2007) (collecting cases).
31. See, e.g., Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 317-18 (4th Cir. 2001) (en banc); Brown v. Bd. of Educ., 978 F.2d 585, 588 (10th Cir. 1992);
32. Morgan v. Burke, 926 F.2d 86, 88 (1st Cir. 1991); Flax v. Potts, 915 F.2d 155, 157-58 (5th Cir. 1990);
33. Pitts v. Freeman, 887 F.2d 1438, 1444 (11th Cir. 1989), rev'd on other grounds, 503 U.S. 467 (1992);
34. Jenkins v. Missouri, 807 F.2d 657, 666 (8th Cir. 1986) (en banc).
35. The purpose of this Section is to summarize the relevant school desegregation legal doctrine before PICS. See generally, e.g., JOSEPH COOK & JOHN SOBIESKI, JR., 3 CIVIL RIGHTS ACTIONS ¶ 16 (2007);
36. AM. JUR. §§ 281-363 (2007);
37. CORPUS JURIS SECUNDUM §§ 102-142 (GLENDA HARNAD ET AL., EDS. 2007);
38. JAMES KUSHNER, GOVERNMENT DISCRIMINATION: EQUAL PROTECTION LAW & LITIGATION § 9 (2006).
39. Although American de jure systems have excluded minorities other than blacks (e.g., Latinos, Asians), most of the published cases concerned black and white students.
40. See RAFFEL, supra note 10, at 81. Cf. Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 217-35 (1973) (Powell, J., concurring in part and dissenting in part) (discussing segregation caused by government discrimination or private citizen choices).
41. See RAFFEL, supra note 10, at 81. Although racism can be unintentional, de jure school desegregation doctrine limits certain legal measures to remedying intentional government discrimination.
42. See Justin Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 DUKE L.J. 345, 364 (2007).
43. See RAFFEL, supra note 10, at 227-29 (defining "school desegregation plans").
44. Ronna Schneider, Race Issues and Public Education, in 1 EDUCATION LAW § 5:9 (2007).
45. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2769 (2007) (Thomas, J., concurring) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 6 (1971)). Justice Thomas limits his definition of "segregation" solely to what we term "de jure segregation." Id. at 2769 (Thomas, J., concurring).
46. Id. at 2769 n.1 (Thomas, J., concurring).
47. See, e.g., Keyes, 413 U.S. at 191 & n.1, 200, 208.
48. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977);
49. Washington v. Davis, 426 U.S. 229 (1976).
50. Discriminatory intent is a factual finding reviewed for clear error. E.g., Pullman-Standard v. Swint, 456 U.S. 273 (1982) (Title VII case).
51. 347 U.S. 483 (1954).
52. See WHAT Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision ix, 3-5 (Jack Balkin ed., 2001) [hereinafter WHAT Brown Should Have Said];
53. Martha Minow, Surprising Legacies of Brown v. Board, 16 WASH. U. J.L. & POL'Y 11, 12 (2004);
54. Steven Winter, Brown as Icon, 50 WAYNE L. REV. 849, 849-54 (2004).
55. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2836 (2007) (Breyer, J., dissenting).
56. See WHAT Brown Should Have Said, supra note 35, at 8.
57. See supra text accompanying notes 30-33.
58. Reva Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REV. 1470, 1470-73 (2004).
59. See generally David Crump, From Freeman to Brown and Back Again: Principle, Pragmatism, and Proximate Cause in the School Desegregation Decisions, 68 WASH. L. REV. 753 (1993);
60. Monika Moore, Unclear Standards Create an Unclear Future: Developing Better Definition of Unitary Status, 112 YALE L.J. 311 (2002);
61. Susan Poser, Termination of Desegregation Decrees and the Elusive Meaning of Unitary Status, 81 NEB. L. REV. 283 (2002);
62. Siegel, supra note 39, at 1546;
63. Ryan Tacorda, Acknowledging Those Stubborn Facts of History: The Vestiges of Segregation, 50 UCLA L. REV. 1547 (2003);
64. G. Scott Williams, Unitary School Systems and Underlying Vestiges of State-Imposed Segregation, 87 COLUM. L. REV. 794 (1987);
65. Note, Allocating the Burden of Proof After a Finding of Unitariness in School Desegregation Litigation, 100 HARV. L. REV. 653, 656 (1987);
66. Doug Rendleman, Note, Brown II's "All Deliberate Speed" at Fifty: A Golden Anniversary of Mid-Life Crisis for the Constitutional Injunction as a School Desegregation Remedy, 41 SAN DIEGO L. REV. 1575 (2004).
67. 163 U.S. 537 (1896).
68. Whereas a dual system denotes "a school system which has engaged in intentional segregation of students by race," a unitary system denotes "a school system which has been brought into compliance with the command of the Constitution." Bd. of Educ. of Okla. City Pub. Schs. v. Dowell, 498 U.S. 237, 246 (1991).
69. Brown I, 347 U.S. at 495. After hearing oral argument in December 1952, the Supreme Court ultimately took three years to decide Brown and its companion cases. WHAT Brown Should Have Said, supra note 35, at 32-41. Brown's, four companion cases were Briggs v. Elliott (South Carolina);
70. Davis v. County School Board (Virginia);
71. Gebhart v. Belton (Delaware); Brown I, 347 U.S. at 486 n. 1; and Boiling v. Sharpe (District of Columbia), 347 U.S. 497 (1954).
72. Brown II, 349 U.S. at 299.
73. Id.
74. Id. at 300.
75. Id.
76. Id. at 301.
77. See generally Rendleman, supra note 40.
78. See RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF Brown v. Board of Education and Black America's Struggle for Equality 730-33 (2004) (discussing the plaintiffs' request for immediate relief).
79. Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969) (per curiam) (holding Brown ITs "standard of allowing 'all deliberate speed' for desegregation is no longer constitutionally permissible" and that instead "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools").
80. See generally Tacorda, supra note 40.
81. Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1337 (11th Cir. 2005) (internal quotation marks and citation omitted).
82. See San Francisco NAACP v. San Francisco Unified Sch. Dist. (Ho), 413 F. Supp. 2d 1051, 1065 (N.D. Cal. 2005).
83. See, e.g., Freeman v. Pitts, 503 U.S. 467, 498 (1992) (Scalia, J., concurring).
84. United States v. Yonkers, 123 F. Supp. 2d 694, 700 (S.D.N.Y. 2000).
85. Ho, 413 F. Supp. 2d at 1065.
86. Freeman, 503 U.S. at 496.
87. Ho, 413 F. Supp. 2d at 1065. See Green v. County Sch. Bd. of New Kent, 391 U.S. 430, 435 (1968). Courts have also "considered an additional factor that is not named in Green; the quality of education being offered to the white and black student populations." Freeman, 503 U.S. at 473.
88. See Green, 391 U.S. at 435.
89. See id.
90. E.g., Price v. Austin Indep. Sch. Dist., 729 F. Supp. 533 (W.D. Tex. 1990).
91. See Reed v. Rhodes, 455 F. Supp. 569, 600 (N.D. Ohio 1978), aff'd, 607 F.2d 714 (6th Cir. 1979).
92. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 20-21 (1971).
93. Freeman v. Pitts, 503 U.S. 467, 492-93 (1992) (Scalia, J., concurring).
94. Id. at 497.
95. Manning v. Sch. Bd. of Hillsborough County, 244 F.3d 927, 943 (11th Cir. 2001) (quoting Locked v. Bd. of Educ., 111 F.3d 839, 842 (11th Cir. 1997)). However, the Manning court and the U.S. Supreme Court have both explicitly rejected the notion that school systems must eliminate vestiges of segregation "to the maximum extent praticable." Id. (emphasis in original); Missouri v. Jenkins, 515 U.S. 70, 101 (1995) (explaining that the proper judicial inquiry is whether the district has remedied vestiges of de jure segregation "to the extent practicable," not to the maximum potential);
96. see also Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1337 (11th Cir. 2005).
97. See, e.g., Anderson v. Canton Mun. Separate Sch. Dist., 232 F.3d 450, 455 (5th Cir. 2000) (quoting Monteilh v. St. Landry Parish Sch. Bd., 848 F.2d 625, 632 (5th Cir. 1988)).
98. See Manning, 244 F.3d at 943 n.28 (quoting Jenkins, 515 U.S. at 81).
99. See, e.g.,Yonkers Branch NAACP v. City of Yonkers, 251 F.3d 31, 39 (2d Cir. 2001).
100. Brown v. Bd. of Educ. of Topeka, 139 F. Supp. 468, 470 (D. Kan. 1955).
101. This Article defines "race-neutral policies" as school system policies that do not use race as a factor. See supra note 4.
102. 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). 74 Brown, 139 F. Supp. at 469-70.
103. Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955).
104. Briggs, 132 F. Supp. at 777 (emphasis added).
105. 391 U.S. 430 (1968). The "U.S. Supreme Court in Green v. County School Board of New Kent County rejected this Briggs Dictum . . . and required school integration, not simply nonracial assignments. To conservatives the abandonment of the Briggs Dictum in Green was the federal judiciary's most significant move from color blindness to color consciousness." RAFFEL, supra note 10, at 29 (citations omitted).
106. The Supreme Court and the circuit courts have discredited the Briggs dictum.
107. See, e.g., Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 200 n.11 (1973) (noting Green rejected the Briggs interpretation of Brown);
108. Green, 391 U.S. at 441-42 (1968) (holding that Virginia's "freedom-of-choice plan," which allowed school choice regardless of race, violated Brown because the schools remained segregated in a "dual system");
109. Walker v. County Sch. Bd. of Brunswick County, 413 F.2d 53, 54 n.2 (4th Cir. 1969) (citing Green, the Fourth Circuit noted, "The famous Briggs v. Elliott dictum ... is now dead");
110. United States v. Jefferson County Bd. of Ed., 372 F.2d 836 (5th Cir. 1966), reh'ggranted, 380 F.2d 385 (5th Cir. 1967) (en banc), cert. denied, 389 U.S. 840 (1967);
111. Singleton v. Jackson Mun. Separate Sch. Dist., 355 F.2d 865, 869-70 (5th Cir. 1966);
112. Singleton v. Jackson Mun. Separate Sch. Dist., 348 F.2d 729, 730 n.5 (5th Cir. 1965).
113. Robert McKay, "With All Deliberate Speed" A Study of School Desegregation, 31 N.Y.U. L. REV. 991, 1053 (1956).
114. Green, 391 U.S. at 437 (1968).
115. Freedom of choice was usually illusory for minority students and parents who were often understandably afraid of voluntarily attending all-white schools; on occasion, black students who tried to attend all-white schools were threatened with violence. E.g., Coppedge v. Franklin County Bd. of Educ., 394 F.2d 410, 411-12 (4th Cir. 1968). The Supreme Court, nevertheless, declined to hold that all freedom-of-choice plans were unconstitutional. Green, 391 U.S. at 439-41.
116. For one explanation of the distinction between "integration" and "desegregation," see Michelle Adams, Shifting Sands: The Jurisprudence of Integration Past, Present, and Future, 47 How. L.J. 795, 797 (2004).
117. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2771 n.6 (2007).
118. Green, 391 U.S. at 437.
119. Id. at 437-38.
120. Justice Brennan, Green's author, supposedly told his law clerks that he wanted "to sweep away much of the dogma that has grown up in de jure litigation to hinder desegregation efforts: the Briggs dictum [and] the semantic distinction between 'desegregation' and 'integration.'" BERNARD SCHWARTZ. Suww'sWay: The School Busing Case and the Supreme Court 59-60 (1986).
121. In Keyes v. School District No. 1, the Supreme Court confirmed the implication of Green and again rejected the "Briggs Dictum":
122. [The dissent argues] that Brown . . . did not impose an 'affirmative duty to integrate' the schools of a dual school system but was only a 'prohibition against discrimination' 'in the sense that the assignment of a child to a particular school is not made to depend on his race['] .... That is the interpretation of Brown expressed 18 years ago by . . . Briggs .... But Green . . . rejected that interpretation.
123. U.S. 189, 200 n.11 (1973). See also United States v. Fordice, 505 U.S. 717, 729 (1992) ("We do not agree . . . that the adoption and implementation of race-neutral policies alone suffice to demonstrate that the State has completely abandoned its prior dual system.") (discussing higher education desegregation); Brown v. Bd. of Educ. of Topeka, 978 F.2d 585, 591 (10th Cir. 1992) (holding that if "current racial identifiability" is a vestige "then the school system has not fulfilled its affirmative duty");
124. United States v. Jefferson County Bd. of Educ., 380 F.2d 385, 389 (5th Cir. 1967) (en banc) (per curiam) (holding affirmative duty required "integration of faculties, facilities, and activities, as well as students");
125. AVID ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW 27-28 (1995) (commenting that Green required "the rule of affirmative integration" and "equated that integration with racial balance");
126. KEVIN BROWN, RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA: FOUR PERSPECTIVES ON DESEGREGATION AND RESEGREGATION 32 (2005) (stating Green required racial mixing);
127. INO GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT DECISIONS ON RACE AND THE SCHOOLS 73 (1976) (noting that after Green "dual system now meant . . . not assignment by race to separate schools but simply insufficient racial mixing");
128. HRISTINE ROSSELL, THE CARROT OR THE STICK FOR SCHOOL DESEGREGATION POLICY: MAGNET SCHOOLS OR FORCED BUSING 6-8 (1990) (commenting that Green required "racial mixing");
129. J. HARVIE WILKINSON III, FROM BROWN TO BAKKE;
130. THE SUPREME COURT AND SCHOOL INTEGRATION, 1954-1978 116-17 (1979) (stating Green placed the onus of integration on school systems and encouraged racial balancing).
131. See Green v. County Sch. Bd., 391 U.S. 430, 437-42 (1968).
132. See, e.g., United States v. Fordice, 505 U.S. 717, 745 (1992) (Thomas, J., concurring).
133. United States v. Lawrence County Sch. Dist., 799 F.2d 1031, 1037 (5th Cir. 1986).
134. United States v. Hinds County Sch. Bd., 560 F.2d 1188, 1191 (5th Cir. 1977).
135. Racial balancing is the process of trying to remedy racial imbalance by manipulating the ratio of students by race at each school such that the proportion of white and minority students at each school closely parallels the proportion of white and minority students in the school system as a whole. See ARMOR, supra note 85, at 158-59.
136. For example, if a school system is composed of 80% white students and 20% black students overall, an individual school whose students are 80% white and 20% black is perfectly racially balanced whereas another school whose students are 90% white and 10% black is +10% white and -10% black racially imbalanced. For a discussion of other less commonly used numerical measures of integration,
137. see Byron F. Lutz, Post Brown vs. the Board of Education; The Effects of the End of Court-Ordered Desegregation 9-9 (Dec. 19, 2005) (unpublished working paper, on file with The Finance and Economics Discussion Series, Divisions of Research and Statistics and Monetary Affairs, Federal Reserve Board) (explaining the "dissimilarity index" and "exposure index"). "Racial imbalance" is defined:
138. [T]he failure of a school district's individual schools to match or approximate the demographic makeup of the student population at large. . . . Racial imbalance is not segregation. Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. . . . Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself.
139. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2769 (2007) (Thomas, J., concurring) (citations omitted). "[W]here the issue is the degree of compliance with a school desegregation decree, a critical beginning point is the degree of racial imbalance in the school district." Freeman v. Pitts, 503 U.S. 467, 474 (1992);
140. see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25 (1971). By implication, the district court does not need to closely scrutinize for vestiges a school that is racially balanced. Freeman, 503 U.S. at 474. In other words, de jure desegregation assumes that racial balance is positive, even desirable.
141. Although racial balancing is a critical starting point, "even when remedying the effects of de jure segregation, the Constitution does not require rigid racial ratios. The purpose of federal supervision is not to maintain a desired racial mix at a school." NAACP, Jacksonville Branch v. Duval County Sch., 273 F.3d 960, 967 (11th Cir. 2001) (citations omitted); see also Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 433-34 (1976).
142. See Christine Rossell, The Evolution of School Desegregation Plans Since 1954, in THE END OF SCHOOL DESEGREGATION? 52-53 (Stephen Caldas & Carl Bankston eds., 2003).
143. Ronna Schneider, Race Issues and Public Education, in 1 EDUCATION LAW § 5:9 (2007).
144. Swann, 402 U.S. at 17-18. The California Supreme Court explained a common justification for de facto desegregation focused upon the ostensible victim: "Negro children suffer serious harm when their education takes place in public schools which are racially segregated, whatever the source of such segregation may be." Crawford v. Bd. of Educ., 17 Cal.3d 280, 295 (1976) (quoting U.S. COMM'N ON CIVIL RIGHTS, RACIAL ISOLATION IN THE PUBLIC SCHOOLS 193 (1967)) (internal quotations omitted).
145. Milliken v. Bradley (Milliken 1), 418 U.S. 717, 745 (1974); Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 208-09 (1973).
146. See, e.g., Swann, 402 U.S. at 16; COOK & SOBIESKI, supra note 23, at % 16.02.
147. Compare infra notes 85-88 and accompanying text.
148. 127 S. Ct. 2738, 2795 (2007) (Kennedy, J., concurring).
149. A de facto segregated school system can desegregate in two ways: either voluntarily without a lawsuit or through a settlement agreement that resolves a pending lawsuit. For a discussion of desegregation settlements, see infra text accompanying notes 196-227.
150. See supra note 91.
151. PICS, 127 S. Ct. at 2800 (Breyer, J., dissenting).
152. 402 U.S. 1, 16 (1971) (emphasis added).
153. See, e.g., Lee v. Lee County Bd. of Educ., 476 F. Supp. 2d 1356, 1361 (M.D. Ala. 2007).
154. Bd. of Educ. of Okla. Pub. Schs. v. Dowell, 498 U.S. 237, 250 (1991) (stating that a school system granted unitary status "no longer requires court authorization for the promulgation of policies and rules").
155. See, e.g., Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 317 (4th Cir. 2001) (en banc).
156. Courts have been inconsistent in their use of the words "unitary" and "unitary status." Dowell, 498 U.S. at 245-46;
157. see generally Deborah Sprenger, Annotation, Circumstances Warranting Judicial Determination or Declaration of Unitary Status with Regard to Schools Operating Under Court-ordered or -supervised Desegregation Plans and the Effects of Such Declarations, 94 A.L.R. FED. 667 (2007).
158. See Dowell, 498 U.S. at 250.
159. Freeman v. Pitts, 503 U.S. 467, 498 (1992).
160. Dowell, 498 U.S. at 250.
161. San Francisco NAACP v. San Francisco Unified Sch. Dist. (Ho), 413 F. Supp. 2d 1051, 1065 (N.D. Cal. 2005).
162. See supra text accompanying notes 59-66.
163. Freeman, 503 U.S. at 489.
164. Id. at 491.
165. Plessy v. Ferguson, 163 U.S. 537, 540 (1896).
166. 163 U.S. 537 (1896).
167. Id. at 548, 551-52.
168. 347 U.S. 483 (1954).
169. Plessy, 163 U.S. at 560-61 (Harlan, J., dissenting).
170. The announcement of Brown I led Time magazine to declare: "In its 164 years the court had erected many a landmark of U.S. history. . . . None of them except the Dred Scott case (reversed by the Civil War) was more important than the school segregation issue. None of them directly and intimately affected so many American families." KLUGER, supra note 50, at 712 (internal quotation marks and citation omitted).
171. 347 U.S. 497 (1954).
172. See Siegel, supra note 39, at 1472-73.
173. See id. at 1470. But see Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. MIAMI L. REV. 9 (2003) (arguing that the "scope of the two principles overlap, that their application shifts over time in response to social contestation and social struggle, and that antisubordination values have shaped the historical development of anticlassification understandings").
174. The "Jim Crow" states were southern states that enacted segregation laws in response to the post-Civil War Reconstruction Era. JUAN F. PEREA ET AL., RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE AMERICA 141-42 (2000).
175. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2773 (2007) (plurality) (rejecting dissent's argument that racial classifications that seek to "include" should not be subject to strict scrutiny); see also Siegel, supra note 39, at 1478-1500.
176. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991). However, Chief Justice Roberts and Justice Thomas in PICS construed Harlan's dissent in Plessy to embody an anticlassification rationale.
177. See PICS, 127 S. Ct. at 2758 n.14 (majority), 2782 (Thomas, J., concurring).
178. See PICS, 127 S. Ct. at 2758 (plurality) ("The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action.") (citation omitted); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) ("Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.").
179. The Supreme Court cited to Brown I without further explanation in a series of summary per curiam opinions that outlawed segregation in a variety of public facilities and accommodations.
180. See, e.g., Lee v. Washington, 390 U.S. 333 (1968) (per curiam) (prisons); Schiro v. Bynum, 375 U.S. 395 (1964) (municipal auditorium);
181. Johnson v. Virginia, 373 U.S. 61 (1963) (courtroom seating); Turner v. City of Memphis, 369 U.S. 350 (1962) (airport restaurant);
182. State Athletic Comm'n v. Dorsey, 359 U.S. 533 (1959) (athletic events);
183. New Orleans City Park Dev. Ass'n v. Detiege, 358 U.S. 54 (1958) (public parks and golf course); Gayle v. Browder, 352 U.S. 903 (1956) (buses);
184. Holmes v. City of Atlanta, 350 U.S. 879 (1955) (golf courses); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public bathhouses and beaches); Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971 (1954) (city lease of park facilities).
185. See, e.g., Gratter v. Bollinger, 539 U.S. 306, 341-43 (2003) (stating that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race" and concluding accordingly that race-conscious policies must "have a termination point") (internal quotation marks and citations omitted).
186. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505-06 (1989) (discussing the difficulty of quantifying and comparing discrimination findings).
187. See, e.g., Cavalier v. Caddo Parish Sch. Bd., 403 F.3d 246 (5th Cir. 2005);
188. Comfort v. Lynn Sch. Comm., 418 F.3d 1 (1st Cir. 2005);
189. Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71 (1st Cir. 2004);
190. Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305 (4th Cir. 2001) (en banc);
191. Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738, 745 (2d Cir. 2000);
192. Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir. 1999);
193. Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999) (per curiam); Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998).
194. See generally Siegel, supra note 39.
195. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2881 (2007) (Breyer, J., dissenting).
196. See id. at 2797 (Kennedy, J., concurring) ("[I]f this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it.").
197. See id. at 2797-2800 (Stevens, J., dissenting), 2800-42 (Breyer, J., dissenting).
198. JAMES B. HARTLE, GRAVITY: AN INTRODUCTION TO EINSTEIN'S GENERAL RELATIVITY 261 (2003).
199. Id. at 289.
200. See supra text accompanying note 40.
201. HARTLE, supra note 134, at 289.
202. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2795-96 (2007) (Kennedy, J., concurring);
203. see also infra text accompanying notes 261-263.
204. See, e.g., COLEMAN, supra note 5; E. Christi Cunningham, Exit Strategy for the Race Paradigm, 50 How. LJ. 755 (2007);
205. Samuel Estreicher, The Non-Preferment Principle and the "Racial Tiebreaker" Cases, 2007 CATO SUP. CT. REV. 239 (2007);
206. Gerken, supra note 6; Linda Greenhouse, supra note 6; Kaufman, supra note 6; Ryan, supra note 6;
207. Edward C. Thomas, Racial Classification and the Flawed Pursuit of Diversity: How Phantom Minorities Threaten "Critical Mass" Justification in Higher Education, 2007 BYU L. REV. 813 (2007);
208. William E. Thro, An Essay: The Roberts Court at Dawn: Clarity, Humility, and the Future of Education Law, 222 ED. LAW REP. 491 (2007);
209. J. Harvie Wilkinson III, supra note 6; Mark E. Wojcik, Race-Based School Assignments After Parents Involved in Community Schools, 95 III. B.J. 526 (Oct. 2007);
210. Comment, Parents Involved in Community Schools v. Seattle School District No. 1: Voluntary Racial Integration in Public Schools, 121 HARV. L. REV. 98 (2007);
211. Ronald Dworkin, The Supreme Court Phalanx, 54 N.Y. REV. OF BOOKS NO. 14 (Sept. 27, 2007);
212. Gary Orfield & Chungmei Lee, The Civil Rights Project, Historic Reversals, Accelerating Resegregation, and the Need for New Integration Strategies (Aug. 2007), http://www. civilrightsproject.ucla.edu/research/ deseg/reversals_reseg_need.pdf.
213. But see Stephan J. Caldas & Carl L. Bankston III, A Re-Analysis of the Legal, Political, and Social Landscape of Desegregation from Plessy v. Ferguson to Parents Involved in Community Schools v. Seattle School District No. 1, 2007 BYU EDUC. & L.J. 217 (2007);
214. Craig Heeren, "Together at the Table of Brotherhood: " Voluntary Student Assignment Plans and the Supreme Court, 24 HARV. BLACKLETTER L.J. (forthcoming 2008) (manuscript on file with authors);
215. Wendy Parker, Valuing Integration: Lessons from Teachers (2007) (unpublished manuscript, on file with authors) (all discussing de jure desegregation).
216. See supra text accompanying note 7 (concerning the number of de jure systems currently governed by desegregation orders or consent decrees).
217. Parts I, II, II-A and III-C constituted the majority opinion because Justice Kennedy joined these portions of Chief Justice Roberts' opinion (Justices Scalia, Thomas, and Alito joined Roberts' entire opinion). PICS, 127 S. Ct. at 2741, 2743.
218. Id. at 2746 (majority);
219. see also id. at 2768 (plurality);
220. id. at 2796 (Kennedy, J., concurring).
221. Id. at 2746 (majority).
222. Id. at 2749 (citing Hampton v. Jefferson Cty. Bd. of Ed., 72 F. Supp. 2d 753, 762-64 (W.D. Ky. 1999)).
223. Id. at 2752.
224. Id. at 2742 (majority).
225. See id. at 2746.
226. See Marks v. United States, 430 U.S. 188, 193 (1977) (stating that in a fragmented Supreme Court opinion "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds"). "As the divergent opinions of the lower courts demonstrate, however, '[t]his test is more easily stated than applied to the various opinions[.]"' Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (citation omitted).
227. See also Hart v. Cmty. Sch. Bd. of Brooklyn, New York Sch. Dist. No. 21, No. 72-CV-1041 (JBW), 2008 WL 508002, at *7-*9 (E.D.N.Y. Feb. 28, 2008) (Weinstein, J.).
228. See generally, e.g., Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953 (2005).
229. See generally Kevin Scott, Shaping the Supreme Court's Federal Certiorari Docket, 27 JUST. SYS. J. 191 (2006).
230. For decisions reviewing the constitutionality of voluntary race-based or race-conscious K-12 student assignment plans before PICS and relying upon various Supreme Court dicta, see generally Comfort v. Lynn Sch. Comm., 418 F.3d 1 (1st Cir. 2005); Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71 (1st Cir. 2004); Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d 738 (2d Cir. 2000); Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir. 1999); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999) (per curiam); Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998).
231. See also Heeren, supra note 139 (manuscript at 45-57).
232. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2751-52 (2007) (citation omitted);
233. see also id. at 2764 (citing Johnson v. California, 543 U.S. 499, 505 (2005)).
234. See supra text accompanying note 72.
235. See Freeman v. Pitts, 503 U.S. 467, 485 (1992);
236. see also supra text accompanying notes 84-90.
237. PICS, 127 S. Ct. at 2757 (plurality).
238. See, e.g., United States v. Texas, 457 F.3d 472, 480 (5th Cir. 2006) ("A central purpose of desegregation decrees was to prevent, to the extent practicable and not attributable to demographic changes, the continued existence of one-race schools.").
239. See supra note 90.
240. See, e.g., Freeman, 503 U.S. at 474 (stating that when determining compliance with a de jure desegregation order, "a critical beginning point is the degree of racial imbalance");
241. see also supra text accompanying note 90-91.
242. See Cass R. Sunstein, The Minimalist, L.A. TIMES, May 25, 2006, at B11 (describing Chief Justice Roberts' minimalist jurisprudential approach).
243. See generally id.
244. PICS, 127 S. Ct. at 2761-62, 2764.
245. See id. at 2761 (plurality).
246. Id. at 2767-68.
247. See id. at 2765-66 (plurality). As Professor Martha Minow has observed, "Perhaps the most powerful legacy of Brown v. Board is this: opponents in varied political battles fifty years later claim ties to the decision and its meaning."
248. Martha Minow, Surprising Legacies of Brown v. Board, 16 WASH. U. J.L. & POL'Y 11, 12 (2004).
249. See, e.g., Joel Goldstein, Approaches to Brown v. Board of Education: Some Notes on Teaching a Seminal Case, 49 ST. LOUIS U. L.J. 777, 777 (2005).
250. See supra text accompanying notes 120-123.
251. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2792 (2007) (Kennedy, J., concurring) ("In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.").
252. Accord Hart, 2008 WL 508002, at *7-8.
253. Justice Kennedy listed five policies that "are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible." Id. Those five policies are: (1) "strategic site selection of new schools;" (2) "drawing attendance zones with general recognition of the demographics of neighborhoods;" (3) "allocating resources for special programs;" (4) "recruiting students and faculty in a targeted fashion; and" (5) "tracking enrollments, performance, and other statistics by race."
254. Id. In light of Justice Kennedy's concurrence, we define such policies as "race-conscious policies."
255. See supra note 4.
256. See id. at 2823-24 (Breyer, J., dissenting). Justice Breyer also argued that "because the diversity [the school systems] seek is racial diversity-not the broader diversity at issue in Grutter-it makes sense to promote that interest directly by relying on race alone."
257. Id.
258. Id. at 2795-96 (Kennedy, J., concurring).
259. See Milliken v. Bradley (Milliken II), 433 U.S. 267, 280-81 (1977) (explaining the restitutionary purpose of a desegregation order).
260. In this paradigm, there is a superficial logic to a pivot point that distinguishes the proper use of race-based remedies (to undo the effects of official segregation) from the improper use of such remedies (to address the effects of social segregation). However, this logic breaks down under closer scrutiny. Setting aside the adverse structural consequences of the pivot point, it strains credulity to argue that the stigmatic effects of race-based policies are mild enough to warrant their use in de jure systems but too severe to address the equally injurious impacts of social segregation. See Anderson v. Sch. Bd. of Madison County, No. 06-60902, 2008 WL 353203, at *11 (5th Cir. Feb. 11, 2008) (Stewart, J., concurring) ("[T]he cruel irony is that racial isolation, albeit not as the product of de jure segregation, largely remains as foreboding and potentially deleterious as it was when federal court supervision began."). Indeed, the difficulty of tracing segregation to a de jure or de facto source underscores the capriciousness of a binary constitutional rule that mandates or prohibits the consideration of race in educational programs on the basis of an unobservable distinction. Those who advocate for a Fourteenth Amendment standard that pivots on the distinction between de jure and de facto segregation are also hard-pressed to distinguish in theory these two species of segregation as they exist in a democracy. In a political system designed to reflect the will of the people, de jure segregation, at its core, is simply social segregation expressed through the political process.
261. Cf. Plessy v. Ferguson, 163 U.S. 537, 560-61 (1896) (Harlan, J., dissenting) ("The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.") (internal quotation omitted). Where the people and their government segregate with one voice, as they did for decades in Jim Crow America, disentangling the effects of social segregation that were political as opposed to non-political in nature is a wobbly axis around which to orient weighty constitutional policy.
262. See supra text accompanying notes 29, 93.
263. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2795-96 (2007) (Kennedy, J., concurring).
264. See supra text accompanying notes 87-89.
265. See supra text accompanying notes 83-86.
266. The Supreme Court has made clear that one of the end purposes of de jure desegregation is "to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution." Freeman v. Pitts, 503 U.S. 467, 489 (1992) (citing Milliken v. Bradley, 433 U.S. 267, 280-81 (1977)). "Federal judicial supervision of local school systems was intended as a 'temporary measure.'" Id. (quoting Bd. of Educ. v. Dowell, 498 U.S. 237, 247 (1991)).
267. See supra text accompanying note 72.
268. See id.
269. Robinson v. Shelby County Bd. of Educ., No. 63-4916, slip op. (W.D. Tenn. July 26, 2007).
270. Id. at 1.
271. Id. at 10-11 (citation omitted).
272. Id. at 56-62.
273. Id. at 53.
274. No. 72-CV-1041 (JBW), 2008 WL 508002 (E.D.N.Y. Feb. 28, 2008) (Weinstein, J.).
275. Jack B. Weinstein, Speech, Brown v. Board of Education After Fifty Years, 26 CAR-DOZO L. REV. 289, 289-90 (2004) (stating that he "became the most junior associate, doing research, writing and minor legal chores" with the NAACP Legal Defense Fund). Judge Weinstein has publicly criticized the PICS majority for failing to recognize that the Seattle and Louisville school systems "were using racial classifications to help, rather than, as in preBrown, to denigrate Blacks" and concluded that PICS "corrodes Brown by preventing desegregation in fact by school district's [sic] seeking to remedy real-on-the ground problems."
276. Jack B. Weinstein, The Role of Judges in a Government of, by, and for the People: Notes for the Association of the Bar of the City of New York, The Fifty-Eighth Cardozo Lecture 217-19 (Nov. 28, 2007) (citations omitted and emphasis in original), available at http://www.nyed. uscourts.gov/pub/ JBW-2007-Cardozo_Lecture_NOTES.pdf (last visited March 12, 2008).
277. Hart, 2008 WL 508002, at *1, *5 (denying the intervenors' motion as moot).
278. Id. at *10.
279. Nos. CV 74-90 TUC DCB, CV 74-204 TUC DCB, 2007 WL 2410351, at *13-15 (D. Ariz. Aug. 21, 2007) (emphasis added).
280. Id. at *12-14 (citing Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2752 (2007)).
281. Id. at *14 (emphasis added).
282. Id. at *15.
283. Id.
284. Hart, 2008 WL 508002, at *10. The court did "request a letter from the Chancellor" to "reassure parents" that "[s]tudents currently attending satisfactorily will be permitted to graduate on schedule" and that the school "will continue to be conducted as a superior magnet school" and will "continue to be conducted as a desegregated school."
285. Id. However, the court did not require any additional information or assurances be submitted, finding that based on the record the defendants "are acting in good faith and that they intend to continue the school along its present excellent lines."
286. Id.
287. See Fisher at *11.
288. Because federal courts lacked the resources to enjoin every school system in the nation, federal district courts "encouraged voluntary plans for integration" and looked favorably on school systems "that worked with courts to produce integration plans and maintained them over time without court supervision." PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISION MAKING 101 (5th ed. Supp. 2007). Moreover, the U.S. Department of Health, Education, and Welfare (the predecessor of lhe current U.S. Department of Education) encouraged voluntary out-of-court private desegregation settlement agreements with de jure systems called Form 441-B plans.
289. See supra note 12.
290. As a result, many de jure systems desegregated voluntarily. For example in McDaniel v. Barresi, a Georgia school system voluntarily adopted race-based policies to dismantle its dual system without any court order or even a pending lawsuit. McDaniel v. Barresi, 402 U.S. 39. 40 (1971). Although the Supreme Court of Georgia had sided with parents who had obtained a state court order enjoining the operation of the voluntary, race-based school desegregation plan, the Supreme Court reversed, concluding that "[i]n this remedial process, steps will almost invariably require that students be assigned 'differently because of their race.' . . . Any other approach would freeze the status quo that is the very target of all desegregation processes."
291. McDaniel, 402 U.S. at 41. In PICS, Chief Justice Roberts commented that "no one questions that the obligation to disestablish a school system segregated by law can include race-conscious remedies-whether or not a court had issued an order to that effect." 127 S. Ct. at 2761.
292. See, e.g., Maimon Schwarzchild, Public Law by Private Bargain: Title VII Consent Decrees and the Fairness of Negotiated Institutional Reform, 1984 DUKE L.J. 887, 888 (1984) (describing the frequency with which school desegregation cases result in consent decrees).
293. One report indicates that as of 1994, 1,094 school districts were involved in segregation lawsuits after Brown I. JOHN LOGAN & DEIRDRE OAKLEY, LEWIS MUMFORD CTR. FOR COMPARATIVE URBAN AND REGIONAL RESEARCH, THE CONTINUING LEGACY OF THE BROWN DECISION: COURT ACTION AND SCHOOL SEGREGATION, 1960-2000 (Jan. 28, 2004).
294. See, e.g., Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992) ("A consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees."); United States v. Armour & Co., 402 U.S. 673, 681-82 (1971).
295. Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 521-22 (1986).
296. See Wendy A. Parker, The Supreme Court and Public Law Remedies: A Tale of Two Kansas Cities, 50 HASTINGS L.J. 475, 543 (1999) ("A consent decree is not confined to the minimum requirements of the decisional law at issue, and thus the parties can agree to terms that the court could not have ordered after establishing liability.").
297. Id.
298. See 18A CHARLES WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4443 (3d ed. 2007) ("[T]he central characteristic of a consent judgment is that the court has not actually resolved the substance of the issues presented.").
299. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 604 (2001) ("Although a consent decree does not always include an admission of liability by the defendant, it nonetheless is a court-ordered change in legal relationships between the plaintiff and the defendant.") (internal citations omitted).
300. See, e.g., id. (reasoning that consent decrees represent a court-ordered change in legal relationship between parties and so can provide basis for award of attorney's fees);
301. 18A WRIGHT, supra note 203 (explaining that consent decrees have preclusive effect on later litigation if parties agree to such terms).
302. See BREST ET AL., supra note 196, at 101.
303. Jones v. Caddo Parish Sch. Dist., 704 F.2d 206, 222 n.25, (5th Cir. 1983), aff'd on reh'g, 735 F.2d 923 (5th Cir. 1984).
304. See Jones, 704 F.2d at 221 (internal citation and quotation omitted).
305. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992).
306. See id. at 383-84 (handing down standards for modifying consent decrees).
307. See Bd. of Educ. of Okla. City Pub. Schs. v. Dowell, 498 U.S. 237, 249-50 (1991) (describing findings necessary to terminate consent decree).
308. Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986).
309. Id. at 522.
310. RICHARD LORD, ED., 6 WILLISTON ON CONTRACTS §§ 12:1, 12:4 (4th ed. & Supp. 2007).
311. See McMullen v. Hoffman, 174 U.S. 639, 654-55 (1899) ("The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way toward carrying out the terms of an illegal contract.");
312. see also Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 357 (1931) ("In determining whether the contract . . . contravenes the public policy of [the state], the Constitution, laws, and judicial decisions of that state ... are to be considered.").
313. See infra notes 229-257 and accompanying text.
314. Cf. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2810 (2007) (Breyer, J., dissenting) ("A court finding of de jure segregation cannot be the crucial variable. After all, a number of school districts in the South that the Government or private plaintiffs challenged as segregated by law voluntarily desegregated their schools without a court order-just as Seattle did.").
315. See generally Dean v. City of Shreveport, 438 F.3d 448 (5th Cir. 2006) (ruling "race-conscious" remedial programs implemented under a consent decree need not be accompanied by a "formal finding of past discrimination"); San Francisco NAACP v. San Francisco Unified Sch. Dist. (Ho), 413 F. Supp. 2d 1051 (N.D. Cal. 2005).
316. Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986).
317. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 439 (1976) ("[T]his Court has held that even though the constitutionality of the Act under which the injunction issued is challenged, disobedience of such an outstanding order of a federal court subjects the violator to contempt even though his constitutional claim might later be upheld.") (citing United States v. Mine Workers, 330 U.S. 258 (1947)).
318. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383-85 (1992).
319. Id.
320. See Dean. 438 F.3d at 455 ("It is when a remedial program is challenged that a trial court must make a factual determination that there was a strong basis in evidence for the conclusion that remedial action was necessary.").
321. See supra text accompanying notes 59-66.
322. See infra text accompanying notes 235-238.
323. An interesting question arises as to whether a lawsuit filed collusively for the purpose of memorializing race-based policies in a consent decree would satisfy the case or controversy requirement of Article III. One commentator has noted that "[t]he Supreme Court . . . has rejected the argument that consent decrees do not meet the case or controversy requirement." Randolph D. Moss, Participation and Department of Justice School Desegregation Consent Decrees, 95 YALE L.J. 1811, 1819 n.47 (1986) (citing Swift & Co. v. United States, 276 U.S. 311, 326 (1928)).
324. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (PZCS), 127 S. Ct. 2738, 2810 (2007) (Breyer, J., dissenting).
325. Heeren, supra note 139 (manuscript at 17).
326. See supra text accompanying notes 170-179.
327. Freeman v. Pitts, 503 U.S. 467, 503 (1992) (Scalia, J., concurring).
328. United States v. Fordice, 505 U.S. 717, 745 (1992) (Thomas, J., concurring) (citations omitted); see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971) (stating that "in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition").
329. Justice Thomas has commented, "It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior." Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Thomas, J., concurring).
330. Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 440 (1968).
331. Accord William Rich, Brown, Dominance, and Diversity, 43 WASHBURN L.J. 311, 324 (2004).
332. Gerald Günther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972);
333. see also Joseph Brunner, Square Pegs Into Round Holes? Strict Scrutiny and Voluntary School Desegregation Plans, 75 U. ON. L. REV. 791, 791 (2006) ("For most of the second half of the twentieth century, applying strict scrutiny to a challenged statute or policy meant that the statute at issue would be held unconstitutional.").
334. But see, e.g., Gratter v. Bollinger, 539 U.S. 305, 326 (2003) ("Strict scrutiny is not strict in theory, but fatal in fact.") (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237 (1995)) (internal quotations and citation omitted).
335. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.1 (PICS), 127 S. Ct. 2738, 2764-65 (2007) (plurality) (internal quotations omitted), 2762 n.16 (plurality) (agreeing that strict scrutiny of all racial classifications has been "definitively determined"), 2774 (Thomas, J., concurring) ("We have made it unusually clear that strict scrutiny applies to every racial classification.").
336. As a doctrinal matter, remedying past intentional discrimination in systems governed by desegregation orders qualifies as a "compelling interest" to satisfy this heightened standard of review. PICS, 127 S. Ct. at 2752 ("[0]ur prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination.")
337. (quoting Adarand, 515 U.S. at 227).
338. Id. at 2768;
339. accord DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 115-16 (5th ed. 2004);
340. Kimberly Yuracko, Trait Discrimination as Race Discrimination: An Argument About Assimilation, 74 GEO. WASH. L. REV. 365, 435 & n.227 (2006).
341. Boiling v. Sharpe, 347 U.S. 497, 499 (1954) ("Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.") (citing Korematsu v. United States, 323 U.S. 214, 216 (1944); Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
342. See supra note 126.
343. 379 U.S. 184, 192 (1964) (citing Brown II, 349 U.S. at 294;
344. Boiling, 347 U.S. at 499;
345. Korematsu, 323 U.S. at 216;
346. Hirabayashi, 320 U.S. at 100).
347. 388 U.S. 1, 11-12 (1967)
348. (citing McLaughlin, 379 U.S. at 198 (Stewart, J., joined by Douglas, J., concurring);
349. Korematsu, 323 U.S. at 216;
350. Hirabayashi, 320 U.S. at 100);
351. see also Siegel, supra note 39, at 1502-04.
352. Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977). 244 Missouri v. Jenkins, 515 U.S. 70 (1995).
353. Id. at 88
354. (quoting Milliken II, 433 U.S. at 280-81).
355. 503 U.S. 497, 496 (1992). In light of Freeman, a panel of the Tenth Circuit reiterated the applicability of affirmative duty to de jure desegregation despite the passage of time in the original Brown case. Brown v. Bd. of Educ., 978 F.2d 585, 590-91 (10th Cir. 1992).
356. Gratter v. Bollinger, 539 U.S. 306, 342 (2003).
357. 515 U.S. 70(1995).
358. 515 U.S. 200 (1995);
359. cf. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.1 (PICS), 127 S. Ct. 2738, 2762 (2007) (plurality) ("[W]hen Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us.").
360. PICS, 127 S. Ct. at 2751-52 (majority), 2762 n.16 (plurality), 2774 (Thomas, J., concurring) (all citing or quoting Adarand);
361. BELL, supra note 238, at 115-16.
362. See Jenkins, 515 U.S. at 112 (O'Connor, J., concurring). Similarly, Justice Scalia stated earlier in Richmond v. J.A. Croson Co.; While thus permitting the use of race to de classify racially classified students, teachers, and educational resources, however, we have also made it clear that the remedial power extends no further than the scope of the continuing constitutional violation. . . . And it is implicit in our cases that after the dual school system has been completely disestablished, the States may no longer assign students by race.
363. U.S. 469, 525 (1988) (Scalia, J., concurring) (citations omitted). In one of the Rehnquist Court's later decisions, Johnson v. California, Justice O'Connor applied strict scrutiny to government-sponsored racial segregation in a state prison while citing to Brown I. 543 U.S. 499, 506 (2005)
364. (citing Brown I, 347 U.S. at 483). Comparing Johnson to the Warren Court's summary per curiam opinions that outlawed segregation in related contexts,
365. see supra note 126, one might conclude that Johnson "curiously reopened the segregation question by replacing the post-Brown ban on racial segregation with the strict scrutiny standard of review afforded to all other racial classifications, thereby muddying the once clear doctrinal waters." Brandon N. Robinson, Johnson v. California: A Grayer Shade of Brown, 56 DUKE L.J. 343, 343 (2006) (citations omitted).
366. Although never examined by the Supreme Court, the lower federal courts have examined with mixed results the situation when strict scrutiny and affirmative duty must co-exist: when a de jure system utilizes a racial classification in the area where the system is partially unitary. See Cavalier v. Caddo Parish Sch. Bd., 403 F.3d 246, 260 (5th Cir. 2005) (finding race-based magnet admissions policy adopted after termination of a consent decree not narrowly tailored to remedy the present effects of past segregation despite no explicit finding of partial unitary status with regard to magnet schools); Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 343-45 (4th Cir. 2001) (en banc) (Traxler, J., concurring in part and dissenting in part) (applying strict scrutiny to magnet admissions policy adopted by then-de jure system); Wessmann v. Gittens, 160 F.3d 790, 794-95, 800 (1st Cir. 1998) (applying strict scrutiny and employment discrimination standard requiring a "strong basis in evidence" to justify compelling interest "to eradicate the effects of past discrimination" and rejecting the school system's argument that the challenged admissions policy was "a means of redressing the vestiges of past discrimination"). In Cavalier, the dissent is notable because it argues that the majority incorrectly applied the strict scrutiny framework instead of the affirmative duty framework. 403 F.3d at 271 (Wiener, J., dissenting);
367. see also supra text accompanying notes 110-111.
368. See supra note 238.
369. See id.;
370. supra text accompanying notes 154-158.
371. See also Fisher v. United States, Nos. CV 74-90 TUC DCB, CV 74-204 TUC DCB, 2007 WL 2410351, at *11-14 (D. Ariz. Aug. 21, 2007).
372. PICS, 127 S. Ct. at 2752 (citing Freeman v. Pitts, 503 U.S. 467, 494 (1992)).
373. See Michael J. Kaufman, (Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy to Secondary School Students and Preferencing Racially-Literate Applicants to Higher Education, 13 MICH. J. RACE & L. 147, 153 (2007) (citing Wygant v. Jackson Bd. of Educ., 467 U.S. 267, 280 n.6 (1986)).
374. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.1 (PICS), 127 S. Ct. 2738, 2793-94 (2007) (Kennedy, J., concurring).
375. Id. at 2791-92.
376. See Freeman, 503 U.S. at 496.
377. Bradley v. Sch. Bd. of Richmond, 382 U.S. 103, 105 (1965).
378. Although the possibility of future segregated schools may appear remote, private plaintiffs alleged the present operation of segregated public schools in 1998. Thomas County Branch of NAACP v. Thomasville Sch. Dist., 299 F. Supp. 2d 1340 (M.D. Ga. 2004) (finding system not in violation of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964). See also Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325 (11th Cir. 2005). Fifty years after Brown, researchers found that segregationist laws and laws used to support segregation remained in Georgia, Louisiana, Mississippi, South Carolina, Virginia, and West Virginia statutes. Jim Crow Study Group, University of Arizona James E. Rogers College of Law and Eller College of Management, Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education: A Report on Laws Remaining in the Codes of Georgia, Louisiana, Mississippi, Missouri, South Carolina, Virginia, and West Virginia, 2006 MICH. ST. L. REV. 460 (2006).
379. PICS, 127 S. Ct. at 2771 n.6 (Thomas, J., concurring).
380. Id. at 2773.
381. See generally STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, 1 FEDERAL STANDARDS OF REVIEW 1-2, 1-3 (3d ed. 1999).
382. FED. R. CIV. P. 52(a).
383. Mixed questions of law and fact arise when the facts of the case are settled and the law is undisputed, but the losing party argues that the court misapplied the agreed-upon law to the agreed-upon facts. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982).
384. See Evan Lee, Principled Decision Making and the Proper Role of Federal Appellate Courts: The Mixed Questions Conflict, 64 S. CAL. L. REV. 235 (1991).
385. Jenkins v. Missouri, 807 F.2d 657, 666-67 (8th Cir. 1986) ("The Supreme Court has emphasized the importance of the clearly erroneous rule in civil rights cases, and, more particularly, in school desegregation cases.") (citations omitted);
386. see also Anderson v. Sch. Bd. of Madison County, No. 06-60902, 2008 WL 353203, at *2 (5th Cir. Feb. 11, 2008); Brown v. Board of Educ., 978 F.2d 585, 589, 594 (10th Cir. 1992); Flax v. Potts, 915 F.2d 155, 157-58 (5th Cir. 1990); Pitts v. Freeman, 887 F.2d at 1438, 1444 (11th Cir. 1989).
387. See Morgan v. Burke, 929 F.2d 86, 88 (1st Cir. 1991) ("The determination that a school system has or has not reached a point of 'maximum practicable desegregation' in the composition of its faculty and staff is a fact-intensive one. Findings are reversible only if clearly erroneous.") (citations omitted).
388. See Anderson, 2008 WL 353203, at *2; Flax, 915 F.2d at 157-58.
389. See Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15, 31 (1971).
390. See supra text accompanying notes 87-90.
391. See, e.g.. Smith v. Univ. of Wash., 392 F.3d 367, 371 (9th Cir. 2004) ("A district court's conclusions regarding the sufficiency of the facts in meeting strict scrutiny are reviewed de novo.") (citation omitted);
392. see also Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 (PICS), 127 S. Ct. 2738, 2751-52 (2007) (applying de novo review).
393. PICS, 127 S. Ct. at 2751-52 (citing Johnson v. California, 543 U.S. 499, 505-06 (2005); Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Adarand Constructors v. Peña, 515 U.S. 200, 224 (1995)).
394. See supra text accompanying notes 59-66.
395. See, e.g., San Francisco NAACP v. San Francisco Unified Sch. Dist. (Ho), 413 F. Supp. 2d 1051, 1051-53 (N.D. Cal. 2005).
396. See supra text accompanying note 59-66.
397. Note that earlier, when district courts were not forcing de jure systems to desegregate fast enough under "with all deliberate speed," the Supreme Court prohibited district courts from amending any desegregation order unless the amendment was first approved by the court of appeals. Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 21 (1969). As a result, the courts of appeals temporarily assumed many of the functions normally assigned to the district court.
398. See supra text accompanying notes 59-66.
399. See, e.g., Bd. of Educ. v. Dowell, 498 U.S. 237, 247-50 (1991); Liddell v. Bd. of Educ. of St. Louis, 121 F.3d 1201, 1216 (8th Cir. 1997).
400. See generally FRANCIS C. AMENDOLA, ET AL., 22 C.J.S. Criminal Law § 75 (2007).
401. See, e.g., Hydril Co. v. Grant Prideco LP, 474 F.3d 1344, 1349 (Fed. Cir. 2007) (holding that the failure to disclose material piece of art can strip patent-holder of exemption from antitrust laws).
402. See, e.g., Wilson v. Arkansas, 514 U.S. 927, 930-31 (1995) (holding the knock and announce principle to be part of the Fourth Amendment's reasonableness inquiry).
403. See supra text accompanying notes 77-91.
404. The Fourth Circuit noted: [I]f the school board fails to carry out the court desegregation order, it can be cited for contempt or held not to have achieved unitariness. But if the Board acts aggressively to implement the court order, it risks facing judicial condemnation and the threat of litigation on the grounds that it was acting ultra vires. This is not the kind of quandary into which we should force institutions that are . . . under judicial decree.
405. Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 354 (4th Cir. 2001) (Wilkinson, J., concurring).
406. See supra text accompanying notes 59-66.
407. See supra text accompanying notes 120, 122, 130, 167, 232, 277.
408. See supra text accompanying notes 235-238.
409. A "majority-to-minority" transfer program is a commonly-used de jure desegregation race-based policy allowing students to transfer from a school at which they are in the majority race to another school at which they are in the minority race. NAACP, Jacksonville Branch v. Duval County Sch., 273 F.3d 960, 985-87 (11th Cir. 2001) (Barkett, J., concurring in part and dissenting in part).