Parents Involved v. Seattle

School Integration - Parents Involved v. Seattle 1s 11

Remedies Fall 2014 Fordham Law School

Integration of Schools - Seattle – Is racial integration a legitimate objective?

George W. ConkAdjunct Professor of Law & Senior Fellow, Stein Center for Law &

EthicsRoom 409

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Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1(1955)

“…we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”

School Integration - Parents Involved v. Seattle 2

Freedmen’s Bureau Act (1865) SEC. 4… the commissioner, under

the direction of the President, shall have authority to set apart, for the use of loyal refugees and freedmen, such tracts of land within the insurrectionary states as shall have been abandoned, or to which the United States shall have acquired title by confiscation or sale, or otherwise, and to every male citizen, whether refugee or freedman, as aforesaid, there shall be assigned not more than forty acres of such land


Amendment XIV (1868) Section 1. All persons born or naturalized

in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Amendment XV (1870) Section 1. The right of citizens of the United

States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.


Slaughter-House Cases, 83 U.S. 36, 71-72 (1872)

“[O]n the most casual examination of

the language of [the 13th , 14th, and

15th] amendments, no one can fail to

be impressed with the one pervading

purpose found in them all … the

security and firm establishment of …

freedom … and … protection [of] the

newly-made freeman and citizen

from … oppression.”


http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1872196552&pubNum=780&fi=co_pp_sp_780_71&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1872196552&pubNum=780&fi=co_pp_sp_780_71&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)

Strauder v. W.Va., 100 U.S. 303 (1879)

The words of the [14th] [A]mendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society.


Strauder v. W.Va (1879)

The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident.


Civil Rights Cases (1883) It is State action of a particular

character that is prohibited. Individual invasion of individual rights is not the subject-matter of the 14th amendment.

Harlan, dissenting I cannot resist the conclusion that

the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. School Integration - Parents

Involved v. Seattle 9

Timeline

1954 - Brown – states legal segregation inherently unequal and stigmatizing

1968 - Green v. New Kent – eliminate dual system root and branch

1971 Swann – perfect balance not necessary

1972 Rodriguez v. San Antonio – 14th Amendment does not protect poor per se

1974 Milliken – do not interfere with local political and administrative boundaries


Timeline 1985 Missouri v. Jenkins – KC schools

“vestiges” of legal segregation must be eliminated via “desegregative attractiveness”

1995 Rehnquist: equity must be limited to “direct” effects of de jure discrimination

Magnet district evades Milliken bar on inter-district remedies

Thomas: liberal racists assume “black is inferior”

Ginsburg: long history of racism cannot be erased in 10 years


551 U.S. 701 (2007)

Parents Involved v. Settle Community

School District


The issue – per C.J. Roberts

[W]hether a public school that had

not operated legally segregated

schools or has been found to be

unitary may choose to classify

students by race and rely upon that

classification in making school

assignments. School Integration - Parents Involved v. Seattle 13

C.J. Roberts "racial classifications are simply too

pernicious to permit any but the most exact connection between justification and classification," Fullilove v. Klutznick, 448 U.S. 448, 537 (Stevens, J., dissenting)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. “


There is no violation to remedy

The Seattle schools were never

segregated by law nor subject to

court-ordered desegregation

The desegregation decree to which

the Jefferson County schools were

previously subject has been

dissolved. School Integration - Parents


Breyer – 3 compelling interests First, there is a historical and

remedial element: an interest in

setting right the consequences

of prior conditions of

segregation and preventing re-

segregation.


Breyer – 3 compelling interests Second, there is an educational

element: an interest in

overcoming the adverse

educational effects produced by

and associated with highly

segregated schools.


Breyer – 3 compelling interests Third, there is a democratic

element: an interest in

producing an educational

environment that reflects the

"pluralistic society" in which our

children will live


Justice Kennedy - in Seattle (2007)

Fifty years of experience since Brown

v. Board of Education, 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. School Integration - Parents


Kennedy – in Seattle (2007) Schools may be race conscious in: Strategic site selection of new

schools Drawing attendance zones Allocating resources for special

programs Recruiting students and faculty Tracking enrollments, performance,

and other statistics by race. Such “general methods” are not

subject to strict scrutinySchool Integration - Parents


Justice Kennedy Parts 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.


Justice Kennedy – in Seattle (2007)

To the extent the plurality opinion

suggests the Constitution mandates

that state and local school

authorities must accept the status

quo of racial isolation in schools, it is,

in my view, profoundly mistaken.


Justice Kennedy in Seattle (2007)

This Nation has a moral and ethical

obligation to fulfill its historic

commitment to creating an

integrated society that ensures equal

opportunity for all of its children. A

compelling interest exists in avoiding

racial isolation, an interest that a

school district, in its discretion and

expertise, may choose to pursue.


Kennedy - in Seattle (2007)

Diversity, depending on its

meaning and definition, is a

compelling educational goal a

school district may pursue.


Kennedy – in Seattle (2007)

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. School Integration - Parents Involved v. Seattle 25

Harlan, dissenting in Plessy (1896)

The post-war amendments had

“a common purpose, namely, to

secure to a race recently

emancipated, a race that

through many generations have

been held in slavery, all the civil

rights that the superior race

enjoy."School Integration - Parents


C.J. Burger in Swann v. Charlotte Mecklenberg – a Board might well conclude “In order to prepare students to live

in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole.

To do this as an educational policy is within the broad discretionary powers of school authorities."


Thomas, concurring

Today, the Court holds that state

entities may not experiment with

race-based means to achieve

ends they deem socially

desirable. I wholly concur in The

Chief Justice's opinion. School Integration - Parents


Justice Thomas, concurring

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."

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion).


Stevens, dissenting

The Court has changed significantly

since it decided School Comm. of

Boston in 1968. It was then 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.


Stevens, dissenting

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin."

This sentence reminds me of Anatole France's observation:

“The majestic equality of the law . . . forbids rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.“


Stevens, dissenting

I have long adhered to the view that

a decision to exclude a member of a

minority because of his race is

fundamentally different from a

decision to include a member of a

minority for that reason. School Integration - Parents


Parents Involved v. Seattle

Documents

united states

racial integration

law ethicsroom

process of law

insurrectionary states

brooklyn law school

right of citizens

equal protection