Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
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Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Herbert Hoover nominated John J. Parker to the Supreme Court in 1930. His nomination was defeated after a lobbying campaign led by labor unions and the NAACP. Twenty years later Judge Parker was on the panel that heard Briggs v. Elliott, the South Carolina companion case to Brown v. Board of Education. When the case was remanded to his court after Brown, Judge Parker wrote an opinion saying that Brown required only desegregation -- that is, the elimination of the use of race as a basis for assigning children to schools -- not integration.
That was one way to interpret Brown, although the remedial order in Brown could also be understood -- indeed, probably is better understood -- as resting on the assumption that the goal was indeed integration. (I've laid out the argument to that effect in an essay in Peter Lau ed., From the Grassroots to the Supreme Court.) Over the next decade, that interpretation of Brown became increasingly untenable as a legal matter, and was decisively rejected in Green v. New Kent County School Board, which required districts to adopt desegregation plans that "worked" -- a concept that is meaningful only if Brown required integration.
Over the same period, as a matter of cultural understanding, the public generally came to see the point of "desegregation" to be integration. And, simultaneously, integration came to be seen as a desirable social policy where it could be achieved. That accounts for the assumption shared by every justice in Swann and related cases that, while there might be constitutional problems associated with court-mandated busing orders, it was obviously constitutional for school boards to pursue integration as a matter of educational or social policy. And, the assumption was, the pursuit could include the assignment of children to schools based on their race where the purpose was to achieve integration. That's why the statements in Swann and related cases, which Justice Breyer's dissent cites, are dicta: The constitutionality of such policies was not at issue because everyone assumed that it went without saying that they were constitutionally permissible.
Fast-forward another thirty years, and Judge Parker's interpretation of Brown is back in full force: Brown requires desegregation but not integration. Indeed, in more than full force: Brown requires desegregation, but prohibits integration (in the sense of school board policies that use race as basis for assigning children to schools in order to achieve integration).
The qualification here is Justice Kennedy's opinion. It will take time for people to figure out what it means, but on an initial reading or two, I find a severe tension between the actual reason he gives for finding the two programs unconstitutional and the rhetoric of the remainder of his opinion. What he says is that the programs are not sufficiently narrowly tailored solely because they use a racial binaary. This means, I would think, that the programs would not be vulnerable to that concern if they used more finely grained racial classifications -- a relatively modest change in the programs. In addition, though, the programs might be vulnerable because alternative, race-conscious programs that do not include race-based assignments of students to schools can accomplish nearly all that the programs at issue did. This comes through in Justice Kennedy's observations about how small an impact the race-based assignments actually had on integration. I can imagine districts saying that, given their characteristics, those other techniques would fall farther short of integration than the Seattle and Louisville programs did (and that they either use or have no reason to use more finely grained racial categories).
Now, back to the history: How did the shift from "desegregation" to "integration" come about? In large part because of resistance on the part of Southern school boards even to desegregation. They took every legal opportunity they could find to preserve the racial patterns of school enrollments that existed before Brown. The reason, of course, was that they were deeply committed to the policy of segregation.
Whether today's school boards are as committed to policies of integration may well determine the extent to which they resist yesterday's decisions -- or, put another way, the extent to which they use Justice Kennedy's opinion as a ground for preserving a great deal of the programs they have voluntarily instituted. Posted
by Mark Tushnet [link]
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