Sometimes there's no other way to achieve integration—A Commentary by Owen Fiss
Sometimes there's no other way to achieve integration
By Owen Fiss
The U.S. Supreme Court's ruling in June disapproving the Seattle and Louisville school desegregation plans shocked the nation, and for many has been memorialized by Chief Justice John Roberts' catchy concluding sentence: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Yet the principle of colorblindness Roberts affirmed is not -- and has never been -- the law.
On this issue, Roberts spoke for himself and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Justice Stephen Breyer dissented, and in opposition to Roberts maintained that integration was a compelling state purpose. Integrated school environments promote equality of educational opportunities for disadvantaged students and improve intergroup relations in ways that benefit all students and furthers the democratic purposes of the Constitution.
In reaching this conclusion, Breyer comprehensively reviewed all the available empirical evidence, and he was careful not to limit his analysis to situations where segregation is the product of official state policy. Breyer also explained why it is sometimes necessary to use racial assignments to achieve integration -- there is no other way.
Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter joined Breyer's dissent. Justice Anthony Kennedy joined Roberts' opinion, but only partially so, explicitly disavowing Roberts' prohibition against the use of race in making student assignments. In the same key as Breyer, Kennedy spoke eloquently of the nation's commitment to "an integrated society." Referring to the Roberts opinion, Kennedy continued: "To the extent that the plurality opinion suggests that the Constitution mandates the status quo of racial isolation in schools, it is, in my view, profoundly mistaken."
Kennedy even went on to identify a number of the means that school boards might use to achieve racial integration -- strategic location of new schools on the borders of black and white neighborhoods; drawing geographic attendance zones in such a way to avoid reinforcing segregated housing patterns; the establishment of magnet programs that would attract students of both races; and the targeted recruitment of faculty and students.
What troubled Kennedy above all about the Seattle and Louisville plans was not their overarching integrative purpose or even the fact that they were race-conscious, but rather that they denied a child's choice of school based on how the school boards might classify that child -- as white or non-white. As Kennedy explained: "Crude measures of this sort threatened to reduce children to racial chits valued and traded according to one school's supply and another's demand."
Breyer showed, successfully to my mind, why the Seattle and Louisville plans did not entail the reductionism that so bothered Kennedy. As Breyer emphasized, most of the children were assigned to schools on the basis of their choice. Now and then an applicant might, on the basis of race, be denied a choice, but that child would be assigned to another school in the system that is presumably as good as the one he or she preferred. In the context of elementary and secondary school assignments, admission is generally not based on merit, and thus the rejected applicant is not likely to be subject to the kind of stigma arguably entailed in being rejected from a prestigious university.
In the end, Kennedy remained unpersuaded by Breyer's analysis, but he carefully confined his ruling to the case and record before the court. In doing so, he left the door open for school integration plans of the type used by Seattle and Louisville. Specifically, Kennedy indicated he would permit the use of racial classifications in the process of assigning students to schools, much the same way as Seattle and Louisville had, although only after it has been shown that less invidious means had been tried and failed: "Measures other than differential treatment based on race first must be tried."
The immediate question before the court in the Seattle and Louisville cases was one of permissibility: Is it constitutionally permissible for school boards to use race in making student assignments in order to achieve integration? A majority of the court -- Breyer, Stevens, Ginsburg, Souter and even Kennedy -- answered that question in the affirmative, although Kennedy would require school boards to try other means before resorting to racial classifications.
This question of permissibility is distinct from the question of obligation at issue in Brown v. Board of Education: Are school boards constitutionally obligated to assign students to schools in such a way as to promote integration? Seeing school integration as a way of furthering equality of educational opportunity and as such a means for eradicating the racial caste structure rooted in the history of slavery and Jim Crow, Chief Justice Earl Warren and his colleagues answered that question in the affirmative.
This understanding of Brown was reflected in the Supreme Court's decisions in the New Kent County (1968), Charlotte-Mecklenberg (1971) and Denver (1973) cases. But in the 1974 decision in Milliken v. Bradley a newly formed majority reversed direction and announced a doctrine that allows school boards to assign students to schools on the basis of their residence even when the foreseeable consequence of that policy is segregated attendance patterns.
Justice Thurgood Marshall, dissenting in the Milliken case, decried that result "as a giant step backwards." The Seattle and Louisville decision did not question Milliken in any way and left the ruling of that case untouched. Those school boards willing to desegregate remain free to do so, and are able to use various strategies that employ race for that purpose, but those that are reluctant and unwilling to create integrated school environments -- the great bulk of school boards throughout the nation -- remain free from a constitutional obligation to do so.
The state of the law is not likely to change in the immediate future. Yet the Seattle and Louisville cases provided an important opportunity -- indeed the first -- for Breyer to address elementary and secondary school desegregation. He rose to the occasion. In a coda to his dissent, which is likely to become as celebrated as Justice Oliver Wendell Holmes' valiant peroration on behalf of free speech in Abrams v. United States, Breyer spoke passionately of the promise of Brown and accused Roberts and those who joined his opinion of betraying that promise. He underscored the multitude of values furthered by school integration and although his immediate purpose was only to legitimate the use of race by schools voluntarily trying to achieve that goal, the implications of what he said may well be broader.
Breyer said -- and here Kennedy echoed his sentiments -- that school integration provides equality of educational opportunities and furthers the democratic aims of the Constitution, and for that reason is a compelling, indeed urgent, government purpose. If this is the case, might not the action of a school board assigning students to schools in a way that segregates them violate the Constitution, even if that segregation is produced not by Jim Crow, but rather by seemingly innocent criteria that inevitably and foreseeably produce the same result?
Owen Fiss is a professor at Yale Law School. He was special assistant to the assistant attorney general in charge of the Civil Rights Division of the Department of Justice from 1966-1968.