Parents Tried to Desegregate Their Schools. The Roberts Court Said No.

Parents Tried to Desegregate Their Schools. The Roberts Court Said No.

Parents Tried to Desegregate Their Schools. The Roberts Court Said No.

The conservative majority rewrote decades of equal protection law in the name of a fictional color-blind Constitution.

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In June 2007, Chief Justice John Roberts mustered five votes to stymie public-school integration in the consolidated cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education. Supported by his colleagues on the right—Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito—Roberts declared that the voluntary efforts of Seattle and Louisville to desegregate their public schools violated the equal-protection clause of the 14th Amendment. By doing so, Roberts converted the promise of the equal-protection clause—adopted to safeguard the rights of newly freed slaves—into a shield to protect white plaintiffs from the threat of attending racially inclusive schools. In the process, he rewrote decades of equal-protection law and announced a misguided denial of the nation’s history in the name of a fictional color-blind Constitution.

The cases from Louisville and Seattle were litigated separately in the lower courts and consolidated for consideration in the Supreme Court. A federal court found in the 1970s that Louisville operated an unconstitutionally segregated school system and placed it under federal court supervision. Louisville submitted to a series of court-ordered desegregation plans, eventually convincing the lower court that local control should be restored. Because the city commendably wanted to maintain its progress, it kept the use of race as one factor in determining where children could attend school. The Supreme Court held that the city’s warrant to take race into account in assigning pupils had expired when the lower court lifted its injunction. The race-conscious assignment plan was required by the Constitution one day but prohibited the next.

Seattle repeatedly adopted desegregation measures to avoid litigation that would have resulted in a finding that it operated an unconstitutional school system. The city implemented a race-conscious school busing program that Washington voters overrode by referendum, but that the Supreme Court implicitly embraced by invalidating the referendum in 1982. In Parents Involved, however, the Roberts majority reversed course, stating that the city could not voluntarily consider race as a tool to integrate its schools in the absence of a finding of discrimination by a federal court. In other words, if Seattle had resisted desegregation, a court could have ordered it to consider race, but it could not voluntarily remedy segregation on its own.

Roberts’s plurality opinion ripped the desegregation plans from their context, proclaiming that any consideration of race, no matter how benign or inclusive, was presumptively unconstitutional. He suggested that a desire to create inclusive schools—which he disparaged as “racial balancing”—was not a sufficiently compelling goal to justify consideration of race. He rejected arguments that diverse schools produce better educational outcomes and teach children the skills and attitudes that will help them live in a diverse society.

Most disturbingly, Roberts distorted the history of Brown v. Board of Education to support his opinion. Brown, decided in 1954, recognized that separate schools based on race were inherently unequal because they told African-American children they were inferior. Roberts disingenuously argued that the Brown plaintiffs had asked only to end the classification of children based on race. He found the inclusive Seattle and Louisville plans indistinguishable from the period before Brown, “when schoolchildren were told where they could and could not go to school based on the color of their skin.” The Brown plaintiffs, however, argued for an end to racial classifications because they believed African-American children would then be integrated into schools with white students. The elimination of racial classifications was a means of achieving inclusion in integrated schools—the very result that the Seattle and Louisville plans sought.

Roberts also ignored the post-Brown rulings in which the Court responded to massive resistance by ordering school districts to desegregate. No earlier Court thought to question the authority of a well-intentioned school district voluntarily to assign students on the basis of race in order to create integrated schools. Indeed, in 1971, the Court explicitly stated that school districts had this power. Roberts dismissed that statement as mere verbiage.

Some downplayed the importance of the decision because the Court had long since weakened the push for school desegregation. After telling school districts to desegregate “with all deliberate speed” in Brown II, the Court largely stepped away until 1968, when it finally told school districts to eliminate their segregated systems “root and branch.” The legal high-water mark for desegregation arrived in 1971, when the Court approved a comprehensive desegregation plan for Charlotte-Mecklenburg, North Carolina. Just three years later, the Court undermined desegregation in the North by making it virtually impossible for courts to craft remedies that would join urban and suburban school districts. It then loosened the requirements for escape from court supervision. Meanwhile, despite passage of the Fair Housing Act in 1968, the country showed little stomach for a significant effort to attack residential segregation, the root of much school segregation.

Yet Parents Involved was still enormously harmful. It told well-intentioned jurisdictions that efforts to create inclusive schools would meet legal resistance. More broadly, it announced the deep hostility of the Roberts Court to remedies for past and continuing racial discrimination. That hostility will be on display next year, when the Court once again considers the constitutionality of affirmative action in higher education.

The Roberts Court has set its sights on dismantling the nation’s civil-rights laws just as many of the nation’s too-comfortable assumptions about civil-rights progress have unraveled. Police killings of unarmed African-Americans have highlighted long-standing tensions between the police and minorities, particularly those living in segregated pockets of entrenched poverty. Similarly, the slaughter of nine innocent people in a Charleston, South Carolina, church forced the country to reckon with its history of racially motivated violence. Despite the Court’s misguided jurisprudence, vigorous enforcement of civil-rights laws governing police misconduct, housing and employment discrimination, voting rights, school integration, and racially motivated violence remains crucial.

The harsh disconnect between the Court’s assault on civil-rights protections and recent events that reinforce their necessity highlights the importance of the 2016 presidential election. All of the conservatives on the Court owe their positions to Ronald Reagan, either because they came to prominence in his administration or because he appointed them to the Court. This Court is trapped in the conservative ideology of the Reagan administration, which is deeply rooted in the political and legal reaction against the gains of the civil-rights movement. Voters in 2016 will determine whether the Court will continue to obstruct the drive for racial equality or enable a new era of racial progress.

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