This week, the American Constitution Society is running a
five part Supreme Court Preview at our blog. Previous installments have discussed a case which will decide whether a woman whose
health is endangered by her pregnancy has a constitutional right to an abortion (
diaried here), and whether the EPA is legally required to
enact more robust regulations against global warming (
diaried here).
Today's installment focuses on public school segregation. According to today's briefing, two upcoming Supreme Court cases will determine whether or not the Constitution forbids school districts from voluntarily choosing to desegregate:
As attorney Anurima Bhargava and law professor Elise Boddie explain, enforcement of the Supreme Court's landmark decision in
Brown v. Board of Education has been limited by later cases deferring to "local control:"
Despite the unanimity of the Supreme Court in Brown, the decision itself was undermined by decades of fierce local resistance to court desegregation orders and by the federal government's failure to provide a mechanism for meaningfully enforcing Brown's dictates until the adoption of the Civil Rights Act of 1964. . . . Later Court decisions, in Milliken v. Bradley and Keyes v. School District No. 1, however, substantially limited the reach of mandatory integration by curbing the authority of federal courts to order remedies that in effect impinged upon the autonomy of local governments that had not "officially" engaged in school segregation.
Bhargava and Boddie explain that the underlying rationale of these limits on desegregation is that local communities should have control over local schools: "[W]hat has animated these recent desegregation cases is a concern that the power of federal courts not be used to intrude upon the autonomy of communities to fashion policies that are consistent with local priorities and goals."
Two upcoming Supreme Court cases, however, now consider whether "local control" is of equal importance when school boards try to decrease, rather than maintain, segregation:
This term, the Supreme Court will hear two cases that could limit the authority of public school districts to adopt race-conscious student assignment policies. At issue are voluntary school integration plans in Louisville and Seattle that apply primarily to students who elect to attend schools outside of their neighborhoods. These cases are not affirmative action cases: they involve student assignment to public schools - where every child is guaranteed a seat - rather than competitive admissions to select institutions. However, they could have a far-reaching impact on the power of school districts to pursue voluntary measures that preserve integration in elementary and secondary schools in order to avoid the harmful educational effects of racial isolation.
A ruling against the school districts could hold that the Constitution "prohibit[s] school districts from voluntarily pursuing race-conscious measures to promote integration." Bhargava & Boddie argue that this would "turn the command of the Equal Protection Clause on its head." In their words, "Considering the racial cleavages that continue to plague our country, it would pervert the purposes of the Equal Protection Clause to pronounce these voluntary policies unconstitutional and to hamstring local communities that seek to honor the legacy of Brown by adopting limited race-conscious measures that promote racial integration."