Seattle School District: “Brown” Turned Upside Down

Seattle School District will widely (and correctly) be viewed as a substantial weakening of the desegregation famously mandated by Brown v. Board of Education’s denunciation of the “separate but equal” doctrine. It is not the most complex set of opinions I’ve ever seen, but it is definitely in the lower reaches of that category qualifying as both “intimidating” and “historic.”

I struggled with subtitling this piece. “The Gordian Knot Tied Anew,” … “Trains Passing in the Night,” … “de jure vs de facto.” But “Brown Turned Upside Down” seems most appropriate, expressing the irony of the Court’s conservatives lambasting its liberals with the very case the liberals seek to preserve. To avoid influence, I’ve read no commentary on this opinion. I’ll be interested to see how my take squares with others.

185 (!) .pdf pages make up the slip opinion. Roberts writes an opinion that constitutes both the Opinion of the Court (in part – the part agreed with by ultimate-arbiter Kennedy in his own solo “controlling” opinion) and his own opinion (joined by the other three conservatives Scalia, Thomas, and Alito. Thomas writes a separate concurring opinion. On the liberal side, Stevens writes separately with a unique venom, and joins the main dissent authored by Breyer cosigned by Ginsburg and Souter (and characterized by Stevens as “unanswerable”).

Roberts’ opinion names race as an unacceptable consideration in assigning students to public schools for K-12. (In the twin cases considered by the court (in essence) whites had been denied entry into the school of their choice due to their race, and sued.) Roberts writes that the central principle of Brown is that Fourteenth Amendment Equal Protection ”prevents states from according differential treatment to American children on the basis of their color or race,” (Slip Opinion .pdf, p.47) thus flogging the liberals with Brown by asserting the Seattle and Jefferson Co. schools may not use a racial criteria – and standing Brown on its head.

How is Brown turned upside down? Roberts writes: “Government action dividing people by race is inherently suspect because such classifications … endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” (Slip Opinion .pdf, p.46) (internal citations and quotations omitted). I’d argue he’s right on the principle, the ideal, the de jure end-state aspiration. But in Roberts’ opinion is the gasoline exacerbating the very conflagration he (purportedly) hopes to avoid: “a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict” – the very segregated, “separate-but-equal” America that Brown attempted to remold into a racially integrated composite. When Roberts’ strikes down race as a consideration, the well-established de facto segregation of housing in neighborhoods across the country will naturally result in de facto segregation of the races in neighborhood public schools. (Note to legal eagles: I am not discussing the two “de’s” in quite the same context as does Kennedy.)

Thus two trains pass in the night, the hoped-for collision and interface of the de jure and the de facto once again prove beyond the combinative capabilities of our judiciary, our Constitution, our society, our own natures. The Gordian Knot of Race in America is tied anew for future generations to ponder and grapple under whatever future circumstances they experience as the result of this new articulation of the law. 

Kennedy limits Roberts’ opinion to some opaque but important extent stating:

[P]arts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. (Slip Opinion .pdf, p.91)

The extent of Kennedy’s moderation of Roberts’ plurality opinion will not be known until further cases wind their way to the Supreme Court in the coming years, but Kennedy sides with Roberts in large part and his limiting of the conservative position should not be overestimated: Breyer’s dissent characterizes the Opinion of the Court (necessarily the parts joined by Kennedy) as a “decision that the Court and the Nation will come to regret.”

The usual ”respectfully dissent[ing]” Justices are absent from these opinions. Stevens joins Breyer but also writes separately to excoriate the plurality:

The Court has changed significantly … It was then [in past decisions] more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision. (Slip Opinion .pdf, p. 107-108)

This ends the text of his dissent, with no “I respectfully dissent,” or even “I dissent” traditional tagline. Notice he accuses the plurality of disrespecting the Court’s precedent.

Breyer ends his dissent with this admonition:

Three years after that decision [Brown] was handed down, the Governor of Arkansas ordered state militia to block the doors of a white schoolhouse so that black children could not enter. The President of the United States dispatched the 101st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See Cooper v. Aaron, 358 U. S. 1 (1958). Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

I must dissent.

According to a report on NPR’s “All Things Considered” as I conclude this piece, Stevens stated this dissent was twice as long as any he’d ever written (he includes two appendices of charted data). He read a 20 page summary of it from the bench, an act of emphasis symbolic of the strongest possible objection, and a frequent feature of this term’s decisions.

Truly, our society is a long way from resolving this issue.

I will look forward to reading Slate’s Supreme Court Conversation discussing this case tonight.

B