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.