Breaking NewsLaw.com and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.

 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Let us be intellectually honest: The U.S. Supreme Court’s decision last term in Parents Involved in Community Schools v. Seattle School District No. 1 departed significantly from precedent. The path Brown v. Board of Education encouraged us to take in 1954, Parents balked at. The commitment Grutter v. Bollinger fortified in 2003, today’s court has eroded. But for an ambiguous glimmer of hope in Justice Anthony M. Kennedy’s concurring opinion, voluntary efforts to nurture and sustain racial integration in our classrooms must view the U.S. Constitution as a roadblock. One thing perhaps as disturbing as Parents‘ holding is the lesson the court gave us on candor. In Parents, a 5-4 majority held that school districts in Seattle and Louisville, Ky., had violated the equal protection clause in how they assigned students to schools. While both districts sought to honor student preference, they used guidelines for advancing racial integration to decide among applications for oversubscribed schools. Chief Justice John G. Roberts Jr., for a plurality, argued that such so-called racial-balancing violated both the 14th Amendment and Brown. Kennedy joined to enforce the holding but not all of its reasoning. With respect to stare decisis, Roberts asserted that he was not seeking to overrule Grutter, a case decided before his appointment to the court. Grutter held that higher education could consider race in its admissions decisions, if it treated applicants as individuals who might contribute to school diversity in different ways. The case reaffirmed the importance of racial diversity in education stated in Regents v. Bakke in 1978. If the programs in Parents are unconstitutional, however, then Grutter is a lesson from an out-of-date textbook. Justice Stephen G. Breyer, in dissent, recognized this. Unlike Grutter, Parents involved more impressionable stages of citizenship � primary and secondary education classrooms. Unlike Grutter, one assignment program in Parents incontestably had originated to remedy de jure segregation. Unlike Grutter, years of full community involvement had shaped both school districts’ programs. Although not every student was entitled to attend his or her first choice, all students were assured a racially mixed learning environment. Unlike Grutter, racial integration was a plus factor in determining how to assign students to schools, not whether to admit them at all. Yet Grutter ostensibly stands while the programs in Parents have fallen. Roberts’ mentor and predecessor, then-Chief Justice William H. Rehnquist, had dissented in Grutter, labeling the admission’s policy “a naked effort to achieve racial balancing.” Regarding Parents, is it the cynic or the realist who asks whether the pupil tried to finish the teacher’s work? Nevertheless, for Roberts not to admit the reach of his reasoning disserves the judicial branch and the public. Our constitutional dialogue suffers when the high court instructs us: “Do as I say, not as I do.” As for Justice Clarence Thomas’ concurrence , his abandonment of his stated jurisprudence is likewise troubling. That jurisprudence would have forced him to juxtapose the history of racial exclusion clearly forbidden by the 14th Amendment, with present efforts at racial integration he finds also unconstitutional. Thomas claims to be an originalist, interpreting constitutional text in light of his investigation of how that text was originally understood. Only days earlier, he had applied originalist analysis in Morse v. Frederick to argue that “the First Amendment . . . does not protect student speech in public schools.” Thomas’ concurrence in Parents, though, like his dissent in Grutter, did not proffer originalist support. Thomas did not examine the Civil War, which gave birth to the 14th Amendment. He did not specifically address the Civil Rights Act of 1866, forebear of the amendment, which secured for “all persons” the same rights “as . . . enjoyed by white citizens.” He did not cite the constitutional debates of the 39th Congress. He did not even adhere to an originalist’s ethic in interpreting Brown itself. In comparing Breyer’s dissent in Parents to arguments once offered by racial segregationists, Thomas claimed to defend Brown. Yet, as reported in the New York Times, former NAACP Legal Defense Fund lawyers Robert L. Carter, Jack Greenberg and William T. Coleman Jr. � all of whom worked on Brown � all reject Roberts’ and Thomas’ interpretation. Race still matters. That is evidenced by events arising even in the short time since Parents was argued in December 2006. Barack Obama was then only a freshman senator from Illinois with a fledgling interest in running for president. The Duke men’s lacrosse team was embroiled in charges of rape by a black exotic dancer. And the women’s basketball team at Rutgers University had just begun its season. It is discomforting that, while the country struggles to become more racially inclusive, an emerging bloc of the court tells us that the Constitution forbids race-conscious community efforts to integrate our schools. Public schools can return to being less Brown and more black or white. If the court believes that the Constitution must be colorblind to this possibility, let it at least be honest with us. But let the court also heed one lesson drawn from its own reasoning in Parents: Sometimes the means expose the injustice of the ends. Marvin H. Lett practices law and writes legal commentary in Washington. He earned J.D. and LL.M. degrees from Harvard Law School, where his research addressed the 13th Amendment and originalism. He was on a brief of amici curiae in support of the respondents in Gratz v. Bollinger, decided in tandem with Grutter.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.