After Seattle/Louisville: The Ball Is In Our Court
The following commentary is by Goodwin Liu, a law professor at UC Berkeley specializing in constitutional law, education policy, and the Supreme Court.
As the dust settles from the Supreme Court’s decision limiting the use of race in school assignment, one thing is clear: the legacy of Brown v. Board of Education as a symbol of America’s commitment to racial integration hangs by a thread. Were it not for Justice Kennedy’s controlling opinion, which said it is “profoundly mistaken” to suggest that we “must accept the status quo of racial isolation in schools,” the Court would have all but extinguished the promise and original meaning of Brown.
For supporters of civil rights, the Court’s decision is a disappointment. But it should not be a surprise-and not merely because of the conservative make-up of the current Court. Throughout its history, the Court has often failed to advance civil rights, while ironically the political branches of the federal government, provoked by the Court’s failures, have delivered many of our most significant civil rights gains. In this historical pattern lies an important lesson for the future of school integration.
The pattern goes all the way back to Dred Scott, the infamous 1856 case declaring that black people could not be citizens of the nation or any state. After the Civil War, Congress crafted the Fourteenth Amendment to undo the Court’s decision and, as part of that amendment, assigned Congress the authority to enforce the new principles of liberty and equal citizenship.
Between 1866 and 1875, Congress took seriously its enforcement role by enacting legislation to protect the rights of black citizens to vote, to own property, to make contracts, and to enjoy public accommodations free of discrimination. Congress even came close to outlawing segregation and providing funding for public schools to secure the Fourteenth Amendment guarantee of national citizenship.
By contrast, the Court in 1873 virtually nullified the Fourteenth Amendment principle that national citizenship confers important “privileges” and “immunities,” including fundamental civil rights. In 1875, the Court eroded federal laws enabling black citizens to vote without fear of violence or harassment. In 1883, the Court struck down the federal law prohibiting racial discrimination in public accommodations on the ground that it exceeded Congress’s power under the Fourteenth Amendment. And in 1896, the Court in Plessy v. Ferguson upheld the rule of “separate but equal,” legitimizing the sixty-year reign of Jim Crow.
Of course, Brown overruled Plessy in 1954. Speaking with candor and moral clarity, the unanimous decision in Brown is rightly hailed as the Supreme Court’s finest hour. But even so, the success of Brown at the level of symbol and substance has been due largely to the work of the political branches.
During the first decade after Brown, the exclusion of black children from majority-white schools in the South remained unchanged. Desegregation began in earnest only after Congress passed the Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965, which paved the way for the Johnson administration to set standards for compliance with Brown and to make compliance a condition of federal education aid.
The federal courts enforced desegregation from the late 1960s to the late 1980s, but their efforts were confined. In 1974, the Supreme Court all but prohibited desegregation across school district lines, cementing the urban-suburban pattern of racial segregation and inequality so prevalent today. Since 1990, the Court has ended nearly all judicially supervised desegregation in order to restore “local control” of public schools, the same mantra invoked by defenders of segregation before Brown.
In areas beyond education, the political branches have also taken the lead while the Court has brought up the rear. Congress passed the Voting Rights Act of 1965 against the backdrop of Supreme Court decisions that upheld poll taxes and literacy tests. Only after Congress declared these practices unconstitutional did the Court change its mind.
Further, Congress passed major legislation to protect women from employment discrimination in 1964, seven years before the Supreme Court ever held sex discrimination to be unconstitutional. And the bipartisan Americans with Disabilities Act of 1990 became law in the face of judicial decisions largely indifferent to the rights of people with disabilities.
Arguably, these legislative victories would not have been possible without Brown. But even if it is true that the Court laid the groundwork for Congress to pass civil rights legislation, it is equally true that Congress, by passing civil rights legislation, laid the groundwork for public acceptance of Brown. As the distinguished lawyer Archibald Cox put it, the Civil Rights Act of 1964 made Brown “more firmly law.”
My point is not that the Court has been unimportant to civil rights. In addition to Brown, the Court helped the civil rights movement by protecting the First Amendment rights of black citizens to engage in peaceful protest activities. It interpreted federal antidiscrimination laws to cover employment practices that have a disparate impact on minorities and women. The Court has also rooted out some (but by no means all) of the entrenched racial discrimination in our criminal justice system. And four years ago, the Court upheld the use of affirmative action in university admissions, a decision that remains intact today.
But in the main, the Court has been a reactive, and sometimes reactionary, institution on matters of racial justice and equality. This perhaps reflects the inherent conservatism of the judiciary, the law’s tendency toward formalism, the social background of the Justices, or some combination of factors. Whatever the reason, history has shown that the framers of the Fourteenth Amendment were prescient in assigning Congress the power to enforce civil rights.
If integrated schools remain an important national aspiration, then we need political leaders to add their voice-our voice-to the dialogue. As the constitutional scholar Alexander Bickel once said, “Virtually all important decisions of the Supreme Court are the beginnings of conversations between the Court and the people and their representatives.” So what should the political branches do in the wake of this Term’s ruling?
First, Congress should hold hearings on the impact of the Court’s decision for schools, communities, and children throughout the nation. Visible hearings would focus attention on the continuing relationship between racial segregation and unequal educational opportunity, and on the urgent need for solutions. Second, Congress should affirm what a majority of the Court said in the recent decision: that reducing racial isolation and achieving a diverse student body are compelling interests that can justify some race-conscious integration plans. Third, Congress should establish guidelines and incentives for school districts to adopt integration plans that meet constitutional standards, just as federal agencies created guidelines and incentives for compliance with Brown forty years ago. All of these steps can occur as part of the current reauthorization of the No Child Left Behind Act, a statute that itself takes race into account to promote equal educational opportunity. (Jonathan Kozol has recently proposed expanding interdistrict choice through NCLB, which I support.)
Finally, the 2008 presidential candidates should be asked whether they consider school integration an important goal and, if so, what they would do as president to achieve it. Only one candidate so far has put this issue on his policy agenda; the others should also be urged to weigh in.
If there is a silver lining in the Supreme Court’s civil rights history, it is that robust political responses to judicial shortcomings have put many of our civil rights victories on a strong foundation of democratic legitimacy. However disappointing a judicial decision may be in the short run, the lesson of history is clear. On civil rights, the constitutional commitments of a motivated and enlightened citizenry ultimately matter as much if not more than the decisions of the Supreme Court.
What I find disturbing about this article is the concept of the Supreme Court as a policy branch of government. The law-making authority resides in the legislative branch. The President is to execute the laws and the courts to apply them as written to particular controversies. Yet in many ways today the legislative branch has the smallest influence on law-making, or at least has lost a lot of its territory to the other two branches via usurpation or acquiescence.
Criticizing the Supreme Court for not adopting a certain policy position, as this article does,
perpetuates this error. The suggestion, however, that it is the role of Congress to define civil rights policy, is sound.
Comment by Martin Wishnatsky — July 31, 2007 @ 9:57 am
“Criticizing the Supreme Court for not adopting a certain policy position, as this article does,
perpetuates this error.”
As I understand Goodwin’s terrific article, he’s arguing that the Constitution itself — through the 14th Amendment — makes a policy choice against racial separation. One may disagree with his argument — though I think he has text and history on his side — but I don’t think this can be challenged: it is entirely appropriate to criticize the Supreme Court for disregarding a policy choice made in by the drafters and ratifiers of the Constitution.
Comment by Doug Kendall — July 31, 2007 @ 10:40 am
“As I understand Goodwin’s terrific article, he’s arguing that the Constitution itself — through the 14th Amendment — makes a policy choice against racial separation. One may disagree with his argument — though I think he has text and history on his side ..”
I’m not sure about the history part. As Cass Sunstein notes in his book “radicals in robes”, the same Radical Republican Congress that passed A14 ran a segregated public school system in Washington DC.
Thus, the “separate but equal” reasoning from Plessy is probably closer to what the enactors of A14 meant by “equal protection” than what was decided in Brown.
Beyond that, for the author to claim that the court came very close to eviscerating Brown is just absurdly apoplectic. Brown was about dismantling state-sponsored segregation, something that wasn’t even at issue in the Louisville/Seattle cases.
Comment by steve jaros — July 31, 2007 @ 1:20 pm
“ironically the political branches of the federal government, provoked by the Court’s failures, have delivered many of our most significant civil rights gains.”
what is so “ironic” about the political branches making most of the significant civil rights gains? as the author notes, the 14th amendment explicitly delegates to Congress the authority to ensure the equal protection of the laws. that amendment says “congress shall have power to enforce, by appropriate legislation, the provisions of this article.” what’s so “ironic” about congress, rather than the courts, exercising that power? seems like that result follows from a natural reading of the amendment.
if the 14th amendment said the “Courts shall have power to enforce, by judicial lawmaking, the provisions of this article,” then i’d agree that it’d be weird that the legislature was making the laws regarding the 14th amendment. But it doesn’t.
Comment by Andy Grewal — July 31, 2007 @ 2:09 pm
“history has shown that the framers of the Fourteenth Amendment were prescient in assigning Congress the power to enforce civil rights.”
also, is it not possible that the framers’ delegation to Congress rather than courts effects how those institutions go about their business?
the argument implicit in that quote seems weird. If i say X shall do something, and then X goes ahead and does it, does that prove “prescience”? That Congress and not the courts has taken the lead in civil rights just might have something to do with the obligations conferred on it. it’s hard to blame the courts for not taking the lead on civil rights when they were not asked to. i agree with the commentator above that “what I find disturbing about this article is the concept of the Supreme Court as a policy branch of government.”
i’m not defending the Court’s decisions by any means — there are plenty of stupid ones out there (e.g. Dred Scott) — but I don’t see how one makes the leap from “the Court has issued bad opinions” to “the Court is responsible for crafting civil rights legislation.”
Comment by Andy Grewal — July 31, 2007 @ 2:25 pm
It seems to me that the real policy decision that the court should be entertaining is not one of an acute policy decision but whether the court would like to change to direction that has taken and ignore the jurisprudential line that takes most of the original teeth out of the 14th Amendment.
Comment by Richard Greenlee — July 31, 2007 @ 5:51 pm
“If there is a silver lining in the Supreme Court’s civil rights history, it is that robust political responses to judicial shortcomings have put many of our civil rights victories on a strong foundation of democratic legitimacy.”
Hmmm, does this mean that judicial victories that are not supported with a political response have a weak foundation of democratic legitimacy?
Comment by Ben Kennedy — July 31, 2007 @ 5:57 pm
Ben. Actually, yes. I personally found the article redundent because anyone who knows the history of the American civil rights movement would have found it a rather long-winded rehashing of what MLK said in the 60s. But perhaps we need to be reminded.
Anyway, I agree that the court is not a policy making body. But I do think that there is a lot of wishful thinking about what the court should do. The heart of the American experiement is the congress, not the president or the SC. But in a country so divided as ours, people look fondly on one of the other branches to get what they want. It seems that expecting a result by judicial fiat is just so much easier and somehow more satisfying than getting out on the streets and organizing.
Comment by Daniel Thomas — July 31, 2007 @ 7:30 pm
The civil rights community’s reaction to Louisville and Seattle cases are greatly overblown. After all, the Warren court held that local governments could not assign children to schools based on race – this SC again held that local governments could not assign children to schools based on race. In the Louisville case, a white child could not attend a local school within a few blocks and instead was assigned a school approx 40 minutes away because she was white. It would seem that the holdings in these cases were more faithful to the principles set out in Brown as opposed to overruling Brown.
Joe Kosanda
Comment by Joe — August 1, 2007 @ 3:24 pm
There are a number of straw men floating around this comment board. First, I don’t think Professor Liu is arguing that the Supreme Court ought to legislate social policy. That’s a standard conservative talking point, but it doesn’t fit the facts here. The integration programs at issue in the Seattle and Louisville cases were put in place, not by courts, but by local officials and parents for their school systems. What the Court did was strike down local, democratically enacted policies, on federal constitutional grounds. People who disapprove of these decisions would say the Court was interfering with social policy decisions that the Constitution gives to other entities, namely local school boards and parents.
Also, I don’t think any serious person claims that the Seattle and Louisville cases overruled Brown. The cases are not true to the meaning of Brown, however, because they endorse an abstract notion of racial equality under which intentional integration is treated as constitutionally indistinguishable from intentional segregation. Enacting a program to help disadvantaged people just isn’t the same as enacting a program to hurt disadvantaged people, and the two shouldn’t be treated the same way under the Equal Protection Clause.
I would also like to point out that the cases are stupid from a policy standpoint because the districts can most likely find a way to achieve roughly the same integrative effect using socio-economic criteria to sort kids into schools. These decisions just prevent districts from being honest about what they’re trying to do.
Comment by Leighton Moore — August 8, 2007 @ 11:16 am
I would also like to point out that the cases are stupid from a policy standpoint because the districts can most likely find a way to achieve roughly the same integrative effect using socio-economic criteria to sort kids into schools. These decisions just prevent districts from being honest about what they’re trying to do.
The ‘integrative effect’ they are trying to achieve is attempting to skip straight to the solution. Non-integrated schools used to be a symptom of de jure and subtle de facto segregation. Nowadays, non-integration is symptomatic of conditions where individual people have not obtained economic equality. I grew up in a high school that had a history of de facto racial segregation dating back to the 70s – the rumor is that the local real estate agents purposefully denied housing to minority families. 25 years later, after those unofficial policies stopped, some minority families have moved in (mostly Asian). Why? Because they had achieved socio-economic equality. Or more specifically, some families had obtained an income high enough to live in the area. Thus, the schools slowly become integrated.
Skipping to the end by integrating the schools via quotas and declaring victory is pointless. Does it improve the socio-economic status of a single person? I’d say it might, if there was some large material difference in basic educational opportunity between the schools. Here, the schools only seem to differ in the advance placement and magnet programs they offer. These decisions will force cities to confront the real problems of minority students, rather than offer skin-deep solutions.
Comment by Ben Kennedy — August 9, 2007 @ 8:47 am
Ben Kennedy wrote:
“Skipping to the end by integrating the schools via quotas and declaring victory is pointless. Does it improve the socio-economic status of a single person? I’d say it might, if there was some large material difference in basic educational opportunity between the schools. Here, the schools only seem to differ in the advance placement and magnet programs they offer.”
I think that “educational opportunity” isn’t just a function of what programs are being offered. Other factors matter, and one big one is the quality of the students who attend a school. E.g., a university like MIT isn’t great just because it has world-class faculty and facilities, part of its greatness comes from having really bright students who are highly motivated to achieve- all those 1550 SAT scores in classes. Intelligent, well-behaved, motivated students make for a great learning environment.
This is also true in K-12 education. Bright, motivated, disciplined kids make for a much better learning environment than intellectually stunted, unmotivated, and behaviorally disruptive kids.
Parents know this. If you have an intelligent, focused-on-learning child, you know his/her educational opportunities will be disrupted if put in a classroom full of unruly, emotionally and intellectually stunted students, regardless of how much “money per student” is being spent, how qualified the teachers are, etc. So they seek to avoid this.
Likewise, parents of unruly, intellectually/emotionally stunted students know their child’s chances of learning will be improved if put in a class with lots of smart, well-behaved students. That environment might “rub off” on their kid and eventually improve his/her performance.
But of course the parents of the smart/well-behaved students don’t want inferior students coming in, because at least initially they *lower* the overall learning climate, and if a “critical mass” of them come, then the overall climate might go from positive to negative.
Student-quality is a big reason why, in a given city or neighborhood, schools that are on paper “equal” in funding or programming (like in seattle) nevertheless gain reputations among all parents as “desirable” or “less desirable”.
Sadly, politicians don’t usually discuss “student quality” because to do so is to criticize the parents who are responsible for creating those low-quality students, and who are voters.
Student quality is, IMO, one of the “real problems” that has to be addressed …
Comment by steve jaros — August 11, 2007 @ 1:05 am
But of course the parents of the smart/well-behaved students don’t want inferior students coming in, because at least initially they *lower* the overall learning climate, and if a “critical mass” of them come, then the overall climate might go from positive to negative.
Are you suggesting that nonwhite children are likelier to be inferior students than white children? Isn’t that exactly the sentiment Brown sought to counter?
Comment by Jacques McKenzie — August 12, 2007 @ 11:29 pm
Jacques McKenzie wrote:
“Are you suggesting that nonwhite children are likelier to be inferior students than white children? Isn’t that exactly the sentiment Brown sought to counter?”
Inferior and superior students (as i’ve defined them on the dimensions of intellectual level, behavior, and motivation) both come in all shades of color.
It’s hazardous to speculate about an empirical issue, but i’d guess that student-quality is a function of the following factors, in no particular order:
1) genetics: Intelligence is at least partially genetic, as are some personality characteristics that influence how emotionally stable we are, how prone we are to behavioral problems, mental health problems, etc. all of which can influence a student’s motivation and behavior in class.
2) home environment: Students who come from “broken homes”, where they are subject to physical abuse, or where the parents are divorced (single parent household), or constantly fighting, or where financial problems mean that the kids go cold or hungry or lack learning materials, or where parents abuse drugs or don’t provide proper medical care, or set an example that denigrates the importance of learning, etc. … All of these surely influence a child’s intellectual and emotional development, and their motivation.
Personally, i don’t believe there is any credible evidence that at the group (race) level, white, red, yellow, black, or brown people differ significantly from each other on any of these genetic factors, such as IQ or personality.
Concerning home environment, in some social settings (e.g., in a particular city) it might be the case that “broken homes” are more common among one race (say whites) than another race Y (say yellows). In which case, yes, in that particular city, there will be proportionately more white inferior students than yellow inferior students. And in which case, it would be rational for parents of yellow kids to not want a “critical mass” of white kids attending their kid’s schools, because that would likely result in a downward effect on the learning environment.
But, that seemingly racial difference in student quality would NOT be because whites are inherently, genetically more prone to use drugs or abuse their kids, etc. It would be a product of broader social/cultural forces that put whites in tougher overall circumstances in that particular city, circumstances that tend to lead to those negative home outcomes.
Comment by steve jaros — August 14, 2007 @ 8:33 pm