VII. Parents Involved (Plessy 2.0)

One hundred and eleven years after the issuance of its decision in Plessy v. Ferguson, in Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court--on which now sit President George W. Bush's appointees John Roberts and Samuel Alito another case involving the Equal Protection Clause and the constitutionality of race-conscious governmental conduct. Before the Court was the issue of the constitutionality of voluntary racial integration plans adopted by elected school boards in Seattle, Washington and Jefferson County, Kentucky. By a five to four vote, the Court held that the at-issue plans' consideration of the race of students in seeking racial diversity on a school-by-school basis constituted racial balancing proscribed by the Constitution.

A. The Roberts and Thomas Opinions

1. Chief Justice Roberts for The Majority and Plurality

In an opinion by Chief Justice Roberts, joined in its entirety by Justices Scalia, Thomas, and Alito (all Reagan Administration alumni) and in part by Justice Kennedy, the Court subjected the Seattle and Louisville voluntary integration plans to strict scrutiny review. Roberts concluded that the compelling governmental interests of remediation and student body diversity recognized by the Court in prior cases could not be relied on as justificatory rationales for the plans. The interest in remedying past intentional discrimination was not being pursued by the school districts, Roberts concluded, as there was no showing that the Seattle schools had ever been segregated by law, and the Louisville schools, while previously subject to a subsequently dissolved desegregation decree, had achieved unitary status.

As for the diversity interest, found by the Court to be compelling in Grutter v. Bollinger, Chief Justice Roberts concluded that Grutter was limited to the “unique context of higher education.” Grutter permitted race-conscious government action “only as part of a ‘highly individualized, holistic review”’ and as “part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be ‘patently unconstitutional.”’ By contrast, Roberts stated, in the Seattle and Louisville plans “race is not considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints,’ . . . race, for some students, is determinative standing alone.”

Speaking for a plurality of the Court, Chief Justice Roberts reasoned that the plans were “not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity” and were instead “directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.” He expressed his concern that accepting what he viewed as “racial balancing” as a compelling governmental interest would justify racial proportionality throughout the Nation, “would ‘effectively assur[e] that race will always be relevant in American life,”’ and would hinder the achievement of “‘the ultimate goal of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race.”’ In a footnote accompanying this discussion of racial balancing, Roberts quoted the “[o]ur Constitution is color-blind” passage of Justice Harlan's Plessy dissent.

In the final pages of the plurality opinion Chief Justice Roberts, eschewing a minimalist judicial approach, addressed and set forth his understanding of the meaning of Brown. Writing that “when it comes to using race to assign children to schools, history will be heard,” Roberts set forth the following description of Brown I and reference to Brown II:

In Brown . . . we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. . . . It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. (“The impact [of segregation] is greater when it has the sanction of the law”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.”

This description of Brown I is disturbingly incomplete and misleading. While the Brown I Court did say that the impact of segregation is greater when law sanctions that conduct, the Court said much more. Chief Justice Roberts does not quote the second part of the very same sentence in Chief Justice Warren's Brown I opinion: “[F]or the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.” Thus, contrary to Roberts' account, in 1954 the Court did not only and unequivocally declare that the at-issue constitutional violation was the legal separation of all children on the basis of race, a framing of the issue “implying equal burdens on blacks and whites.” The specific violation identified and invalidated by the Court was the exclusion of black children from schools attended by white children in furtherance of a regime of race-based apartheid and in a manner “generat[ing] a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Furthermore, as Goodwin Liu has noted, Chief Justice Roberts' reference to the requirement of non-race-based admissions to public schools does not acknowledge “that the Court in later decisions required school districts to do much more than assign children to schools on a nonracial basis to comply with Brown.” The uninitiated and uninformed would not know that Brown's progeny includes decisions charging school boards with the “affirmative duty” to eliminate discrimination, “root and branch,” and recognized the broad equitable powers and remedial discretion of the federal courts to order race-conscious affirmative action in addressing persistent segregative practices and realities.

Chief Justice Roberts' plurality opinion then turned to the parties' and amici curiae's debate over “which side is more faithful to the heritage of Brown.” In his view, “the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: ‘[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.”’ “What do the racial classifications at issue here do,” Roberts asked, “if not accord differential treatment on the basis of race?” The Chief Justice quoted a statement to the Court made by Brown lawyer (now senior federal Judge) Robert L. Carter in the 1952 oral argument of Brown I: “‘We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”’ “There is no ambiguity in that statement,” Roberts wrote, arguing that “it was that position that prevailed in this Court.” The Chief Justice asked and answered in the affirmative the question “What do the racial classifications at issue here do, if not accord differential treatment on the basis of race?”

Consider each argument made and proposition set forth in the preceding paragraph. Chief Justice Roberts posits, incredibly, that those who challenged and fought the entrenched system of racial apartheid in the mid-1950s were and are jurisprudentially aligned with the twenty-first century position of those who sought the invalidation of the Seattle and Louisville voluntary integration plans. This invention and illusion of symmetry masks the real and obvious asymmetry and differences between Jim and Jane Crow's state-mandated exclusion and subordination of African-Americans and Seattle and Louisville's inclusionary integration projects. And Roberts' characterization of Brown as a case about, not racial hierarchy and the stigmatization and subordination of African-American children, but the “racial classification” of any and all children illustrates the problems and perils of sanitized narrative. The classifications at issue in Brown did treat children differently on the basis of race--and did so for the purpose and as a means of intentionally excluding black children from attending school with white children consistent with and protective of a social order grounded in white supremacy. Given that reality, to simply and only ask whether persons are being classified by race without asking “why” and “for what purpose” is a problematically partial and acontextual query that too easily yields answers and conclusions blind and indifferent to contemporary racial realities.

As for Chief Justice Roberts' quotation of and reliance on Judge Carter's 1952 oral argument statement, Carter, commenting after the Parents Involved decision, had this reaction: “All that race was used for at that point in time [in the 1950s] was to deny equal opportunity to black people. . . . It's to stand that argument on its head to use race the way they use [it] now.” That is the reaction of one who was present at and was angered and disgusted by the “mean-spirited approach” of attorney John W. Davis in the Brown oral argument as Davis defended segregation in South Carolina. In Carter's view, “Too many white people in this country share Davis's sentiment that blacks should be content with half a loaf or even a quarter of a loaf of full equality.”

Carter has also written that in the years following Brown, he and his colleagues “felt the only way for a school board to determine whether its schools were divided into black and white schools was to take a race census. We would then use the results to achieve as many integrated schools as possible.” Carter noted the criticism of this race-conscious approach by those who “argued that if we were trying to build a color-blind society, then to use race as a criterion was moving backward. Some of these people may have been sincere--but most were hypocrites, with no interest in breaking down existing racial barriers.” As for the meaning of Brown's heritage, Carter has made clear his view that the Court's 1954 decision “remains a pivotal moment in the struggle for racial justice” and “launched the movement that overturned Jim Crow in the South and sparked a revolution in black consciousness and race relations, one that transformed America's social and political landscape and continues to resonate to this day.” There is no ambiguity in that statement.

In the last paragraph of his Parents Involved opinion, Chief Justice Roberts stated that “[b]efore Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” (No, a dissenting Justice John Paul Stevens responded: “[The Chief Justice] fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.” For Roberts the way to achieve a nonracial admissions system for public schools that have never segregated by race or have removed the “vestiges of past segregation . . . is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

“[H]owever nifty it may sound,” this all-discrimination-is-wrong slogan and approach does not comprehend that “the point of prohibiting discrimination is not to forbid distinguishing between people-- differentiation is important and even necessary in some instances”; nor does it present and require consideration of “the moral question posed by the fact that it is often desirable and sometimes necessary to treat people differently.” Thus, as Martha Minow observes, Roberts ignores

the simple difference between the use of race by Seattle and Louisville and the use of race rejected by the Court in Brown. To stop current discrimination in schools, communities may need schools to take race into account--but in a very different way than the exclusions of the Jim Crow days. Using race and ethnicity to redress effects of past discrimination, to overcome poor educational outcomes associated with schools with majority non-white enrollments, and to promote work, play, and democratic cooperation across racial lines simply are not the same kind of invidious discrimination that Brown struck down. Somehow, color-blindness replaced equality as the measure of the law.

2. Justice Thomas, Concurring

In a separate concurring opinion, Justice Thomas set forth his views that “resegregation is not occurring in Seattle or Louisville” and that there is a difference between segregation and racial imbalance in the public school context. “[S]egregation is the deliberate operation of a school system to ‘carry out a governmental policy to separate pupils in schools solely on the basis of race,”’ while “[r]acial imbalance is the failure of a school district's individual schools to match or approximate the demographic makeup of the student population at large.” Acknowledging that “presently observed racial imbalance might result from past de jure segregation,” Thomas opined that “racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices.” Because racial imbalance sans intentional separation of the races by the state is not “segregation,” Seattle had no history of de jure segregation, and Louisville was no longer covered by a desegregation decree, Justice Thomas concluded that the integration plans did not serve “a genuinely compelling state interest.”

Justice Thomas also made an extended argument for colorblind constitutionalism. “My view of the Constitution is Justice Harlan's view in Plessy: ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’ And my view was the rallying cry for the lawyers who litigated Brown.” Is Thomas's view of the Constitution the same as Harlan's? And is Thomas's view the same as the rallying cry of the Brown lawyers?

Justice Harlan's colorblindness was and is more complicated than the see-no-color mantra Justice Thomas found in and constructed from the aforementioned thirteen words of Harlan's Plessy dissent. As previously discussed, a race-conscious and color-aware Harlan spoke of colorblind constitutionalism in matters of civil rights and equality; he did not endorse, did not argue for, and did not believe in the social equality of blacks, as a reading of other passages in his Plessy dissent makes clear. Thomas thus argued for a colorblind approach to the Equal Protection Clause that was not in fact Harlan's approach, unless Thomas adopted the Reconstruction-era “tripartite theory of citizenship” which did not encompass, recognize, or protect the social right to attend a racially integrated school. Thomas's description and understanding of Harlan's colorblind constitutionalism is thus materially incomplete and fundamentally flawed.

Nor does Justice Thomas's contention that his view of the Constitution is the same as the rallying cry of the Brown lawyers withstand scrutiny. Thomas quoted Judge Constance Baker Motley's comment that Thurgood Marshall “had a ‘Bible’ to which he turned during his most depressed moments. The ‘Bible’ would be known in the legal community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson . . . . I do not know of any opinion which buoyed Marshall more in his pre-Brown days.” To say that one stands with Marshall may, understandably, have significant rhetorical force and argumentative power. But it is by no means clear or persuasively arguable that Marshall and Thomas share the same or relevantly similar views of Harlan's dissent when it comes to applying the Equal Protection Clause in the specific contexts of public school desegregation and voluntary integration in the wake of, and with full knowledge of, the stubborn resistance and obstruction in the decades following the Court's 1954 and 1955 decisions. What is known is that Justice Marshall was disappointed by certain aspects of the Court's post-Brown jurisprudence, including the Rehnquist Court's resegregation decisions joined by Thomas, and that Marshall lamented “our collective failure to live up to the promise and vision that animated” Brown.

Having invoked and aligned himself with Justice Harlan and the Brown lawyers, Justice Thomas provocatively placed a dissenting Justice Breyer in the camp of the segregationists who opposed Brown. Thomas argued that the views expressed in Breyer's Parents Involved dissent “first appeared in Plessy” wherein the “Court likewise paid heed to societal practices, local expectations, and practical consequences by looking to ‘the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”’ “What was wrong in 1954 cannot be right today,” Thomas urged:

Whatever else the Court's rejection of the segregationists' arguments in Brown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the Brown Court. . . . And the fact that the state and local governments had relied on statements in this Court's opinions was irrelevant to the Brown Court. The same principles guide today's decision. None of the considerations trumpeted by the dissent is relevant to the constitutionality of the school boards' race-based plans because no contextual detail--or collection of contextual details--can “provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.”

Justice Thomas's position that the same principles guiding the Brown Court in 1954 guided the Parents Involved Court in 2007 is premised on his description of Brown as a case in which the Court prohibited any and all race-conscious distinctions by governmental actors. But Brown was and is much more than that: While the Court outlawed state-mandated racial discrimination, to be sure, Brown is more accurately described and understood as a decision upholding an Equal Protection Clause challenge to discrimination in the form of anti-black discrimination and the subordination and subjugation of a historically oppressed people. But that detail and context are of no significance for Thomas, given his belief that any governmental consideration of race violates the Equal Protection Clause. On this view, segregation in furtherance of the goal of excluding black children from schools attended by white children and voluntary integration measures bringing together students of different races both violate the Constitution.

B. Justice Kennedy, Concurring In Part

Justice Kennedy cast the fifth and majority-creating vote for striking down the Seattle and Louisville plans. In a separate concurring opinion he concluded that “the state-mandated racial classifications at issue, official labels proclaiming the race of all persons in a broad class of citizens--elementary school students in one case, high school students in another--are unconstitutional as the cases now come to us.” While school districts may “continu[e] the important work of bringing together students of different racial, ethnic, and economic backgrounds,” public schools should not pursue this objective by “resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.” Thus, as Heather Gerken notes, “Kennedy is willing to let the state consider race at the wholesale level but not at the retail level” and “is perfectly comfortable with . . . ‘indirect’ and ‘general’ race-conscious strategies.”

Justice Kennedy parted company with other aspects of Chief Justice Roberts' equal protection analysis, however. Rejecting colorblind constitutionalism, he wrote: “The enduring hope is that race should not matter; the reality is that too often it does.” He argued, further, that parts of Roberts' plurality opinion “imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account,” and that Roberts' “stop discriminating” postulate “is not sufficient to decide these cases.” As for Roberts' and Justice Thomas' invocation of Justice Harlan's Plessy dissent, Kennedy stated that Harlan's colorblind Constitution “was most certainly justified in the context of his dissent . . . . And, as an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.”

Opining that school officials may “adopt general policies to encourage a diverse student body,” Justice Kennedy would allow pursuit of the goal of diversity through race-conscious means, including: (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.” These race-conscious measures are “unlikely” to require strict scrutiny judicial review, he reasoned, since each student would not be defined by and treated differently on the basis of her or his race.

What all of this means, and whether and how Justice Kennedy's approach may be applied in future cases, is by no means clear. Given this ambiguity, risk-averse school boards considering the adoption of integration plans but concerned about lawsuits and the attendant litigation and aggravation costs may decide, for legal and not educational reasons, to forego racial integration initiatives.

Although Seattle and Louisville did not persuade a majority of the Court that their race-conscious policies did not violate the Equal Protection Clause, Justice Kennedy's declaration that there are circumstances in which school officials may take race into account, coupled with the race-can-be-considered position of the four dissenting Justices, “create[d] a fragile majority that would permit school systems and housing developers to locate schools based on demographic studies with the aim of encouraging racial integration.” But that victory “can hardly obscure the reality that, in the wake of these decisions, there remains no viable mechanism for enforcing Brown, and that this so-called compelling state interest will probably remain something to be paid ceremonial curtsy to but never to be honored, much less enforced, in actual practice.”

C. Plessy 2.0

Plessy and Parents Involved are separated by 111 years--decades and generations in which the sociopolitical meanings of race have been anything but static. The institution of the Supreme Court, interpreting and applying the Equal Protection Clause, has played a critical role in giving content to the phrase “equal protection of the laws” because the Court has acted and reacted in response to claims that the Constitution permits or prohibits certain race-conscious governmental conduct.

As discussed above, the Equal Protection Clause as read and understood by the Court in Plessy did not provide relief for African-Americans who lived in and fought against the subordination and stigmatization of Louisiana's racial apartheid regime. Supposedly institutionally unaware of the pre-1900 realities of race and racialism and arguing that the separate-but-equal doctrine did not “destroy the legal equality of the two races,” the Court fallaciously questioned the veracity of those who challenged segregation as the Justices looked to and made law on the basis of a formalism divorced from and indifferent to (indeed, contrary to) history and then-extant circumstances. But, as Homer Plessy and Justice Harlan knew, Louisiana's white supremacist order intentionally demeaned and subordinated blacks in real, concrete, and harmful ways.

The respective plurality and concurring opinions of Chief Justice Roberts and Justice Thomas contain and resurrect certain features of Plessy's problematical analysis of the Equal Protection Clause. In both cases, integration proponents who believed in and pursued the racial integration project failed to persuade a majority of the Court that their efforts were grounded in and were consistent with the animating purposes and principles of the clause. In both cases, the Court stood in the way of those who invoked the Constitution as they sought to change the racial status quo in ways that would bring to real life, and not in some imagined and hypothesized world, the legal and moral imperative of responding to and seeking ways around or over the exclusionary and stigmatizing race-based barriers erected by public and private actors. Finally, in both cases the Court, having the final say on the operative meaning(s) of the Equal Protection Clause, reduced complex and multifaceted legal, social, and political issues to ahistorical, acontextual, and abstractional slogans-- separate is not unequal in Plessy and, in Parents Involved, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Additionally and interestingly, one can find in the pages of the Parents Involved decision a present-day critique and questioning of the utility of law in promoting social equality reminiscent of Plessy's (1) rejection of the proposition that “social prejudices may be overcome by legislation” and (2) declaration that “[i]f the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals.” In his Parents Involved concurrence, Justice Thomas opined that “[t]here is no guarantee . . . that students of different races in the same school will actually spend time with one another.” Nor was Thomas convinced that increased contact between students of different races improves racial understandings and relations; indeed, he argued, “racial mixing” could lead to “deterioration in racial attitudes.” In other words, Seattle and Louisville's voluntary integration plans will not reduce, and may even increase, social prejudice. This suggestion that governmental efforts to promote and achieve racial integration can actually be harmful is more than just a Plessy-like approach to the Equal Protection Clause. As James Fleming argues, “[i]t seems to me that, ironically, Thomas is not only rewriting Brown and resurrecting Plessy, but perhaps even rewriting Brown as resurrecting Plessy! For hereafter, Brown is to be interpreted through a worldview analogous to that of Plessy.”

In sum, the Parents Involved plurality, like the Plessy Court, adopted a formalistic approach to, and view of, race and made it more difficult to respond to the racial segregation and isolation addressed in Seattle and Louisville's voluntary integration plans. In my view, the sociopolitical meanings of race, and whether and how those meanings and existing racial realities impact and adversely affect the lives and opportunities of the racialized, are not issues and questions fully answerable by a formalist analysis or by a reliance on a faux and contrived symmetry of dissimilarly situated persons. Nor can these issues be meaningfully assessed by resort to a memorable passage in the opinion of a dissenting Justice Harlan, written more than one hundred years ago. To decide the constitutionality of the at-issue plans with no regard for or recognition of the history and the factual contexts of those communities' voluntary promulgation and implementation of race-conscious student assignment policies; to not even acknowledge the arc from slavery to the failed post-Civil War Reconstruction and new slavery and Jim and Jane Crow to Brown and beyond; to act as though the present is not connected to the past: this hermetically sealed Equal Protection Clause protects, not integration and change, but “the inertial persistence of entrenched patterns of racial hierarchy.”