Last Thursday’s Supreme Court Ruling: A Setback for Civil Rights

The following commentary is by Nicole Elam, a student at Howard Law School and a summer associate in Akin Gump’s DC office. As a student at Howard, Nicole worked on an amicus brief in support of the school districts.

While studies have consistently demonstrated the benefits of racially diverse classrooms for children, the Supreme Court’s 5-4 ruling last Thursday is regressive for American ideals of equality. In his opinion, Chief Justice Roberts announced that a school district’s voluntary adoption of a student assignment plan that relies on race to determine which schools certain children may attend violates the Constitution. Because “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” the plurality held, the Seattle and Louisville school districts failed to carry their burden of showing the achieved interest of racial integration: the measures are just too extreme, and the use of racial classifications was not narrowly tailored to achieve a compelling government interest. I disagree. Instead of recognizing racial integration as a compelling interest, the plurality instead issued a blow to Brown v. Board of Education – one of the high court’s most seminal cases.

In 1954, Brown sought to racially desegregate public schools as a compelling national interest. Twenty-five years of deliberate speed in desegregating public schools districts resulted in court-ordered integration and busing plans becoming law. As court decrees were removed, public school districts experienced resegregation and concentrated poverty as white students left urban school districts. Notwithstanding racial isolation, voluntary plans became the only means to effectively achieve Brown’s promise of equality in racially balanced schools.

But on Thursday the Supreme Court hammered the final nail in the coffin of Brown v. Board of Education and the dream of a desegregated America. Ironically, the plurality used Brown as a backdrop to support its decision, claiming that Brown was in fact about legally separating children on the basis of race. However, the plurality failed to acknowledge the greater promise of Brown: an equal integrated educational system. And although the plurality correctly classified Brown as addressing legal segregation, it further failed to recognize that Brown was about de jure segregation, while in the Seattle and Louisville cases the Court missed its opportunity to address de facto segregation. Instead of echoing Brown’s promise of equality, the Court instead echoed Governor George Wallace’s words, “Segregation today, segregation tomorrow, and segregation forever.”

Focusing on the minimal number of students affected by the plans, the plurality minimized the necessity of using such classifications. Focusing on the term (or rather the design and operation of the plans as) “racial balancing,” the plurality failed to recognize the asserted educational benefits of diverse classrooms. Instead, it contended, “[a]ccepting racial balancing as a compelling state interest would justify imposing racial proportionality throughout American society.” But this is not the case and is in fact far too extreme. The Court does have a role in ensuring that all people have equal opportunity. As Justice Kennedy himself notes, “the pluarality is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of race.”

In effect, the plurality has changed the Equal Protection Clause from a shield of protection to a sword of defeat. No longer does it allow minorities to strive for equality, but it instead operates as a tool to advance oppression. By striking the voluntary integration plans, the Court fails to articulate how a society divided along racial lines can be integrated without considering race. Even the measures suggested by Justice Kennedy – strategic site selection, drawing attendance zones with the recognition of demographics, tracking enrollment by race, etc. – don’t get to the root of the problem. The use of race-neutral means is not an effective solution for the pervasive racial segregation in America’s schools. In fact, school districts using race-neutral means – such as Wake County and Charlotte, North Carolina, San Francisco, La Crosse, Wisconsin, and Brandywine, Delaware – to provide educationally effective and racially integrated learning environments for students have struggled to achieve racial diversity without taking race into account. A shift from race-conscious to race-neutral student assignments plans may very well lead to significant resegregation and have a negative effect on the achievement of African American and minority students.

The message from the Court rings loud and clear – racial integration is not a compelling interest recognized by this nation. As such, the door for de facto segregation has been thrust ajar. The Court’s decision has far-reaching implications beyond the classroom. Without the use of race in decision making, polarized communities, poverty concentration, minimal corporate diversity, limited minority business initiatives, and strangled affirmative action plans will become the norm. Our nation may start to look disturbingly similar to the one Brown sought to combat. What now? Civil rights advocates must now turn their attention to drafting legislation to protect minorities. It is only through legislation that Brown‘s promise will remain.