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Remedies Fall 2014

Fordham Law School

Integration of Schools Seattle Is racial integration a


legitimate objective?
George W. Conk
Adjunct Professor of Law & Senior Fellow, Stein Center for Law & Ethics
Room 409
gconk@law.fordham.edu
212-636-7446
Torts Today: http://tortstoday.blogspot.com
Otherwise Commentaries on Law, Language & Politics
Blackstonetoday.blogspot.com
School Integration - Parents
Involved v. Seattle
s

Alexander M. Bickel, The Original Understanding and


the Segregation Decision, 69 Harv. L. Rev. 1(1955)

we cannot turn the clock back to


1868 when the Amendment was
adopted, or even to 1896 when
Plessy v. Ferguson was written. We
must consider public education in the
light of its full development and its
present place in American life
throughout the Nation. Only in this
way can it be determined if
segregation in public schools
deprives these plaintiffs of the equal
School Integration - Parents
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Freedmens Bureau Act (1865)


SEC. 4 the commissioner, under
the direction of the President, shall
have authority to set apart, for the
use of loyal refugees and freedmen,
such tracts of land within the
insurrectionary states as shall have
been abandoned, or to which the
United States shall have acquired
title by confiscation or sale, or
otherwise, and to every male citizen,
whether refugee or freedman, as
aforesaid, there shall be assigned not
School Integration - Parents
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Amendment XIV (1868)


Section 1. All persons born or naturalized
in the United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the state wherein
they reside.
No state shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any state deprive any person of
life, liberty, or property, without due
process of law; nor deny to any person
within its jurisdiction the equal protection
of the laws.
School Integration - Parents
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Amendment XV (1870)

Section 1.
The right of citizens of the United
States to vote shall not be denied or
abridged by the United States or by
any state on account of race, color,
or previous condition of servitude.
Section 2.
The Congress shall have power to
enforce this article by appropriate
legislation.
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Slaughter-House Cases, 83 U.S. 36, 71-72 (1872)

[O]n the most casual examination of


the language of [the 13th , 14th, and
15th] amendments, no one can fail to
be impressed with the one pervading
purpose found in them all the
security and firm establishment of
freedom and protection [of] the
newly-made freeman and citizen
School Integration - Parents
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from oppression.

Strauder v. W.Va., 100 U.S. 303 (1879)

The words of the [14th] [A]mendment,


it is true, are prohibitory, but they
contain a necessary implication of a
positive immunity, or right, most
valuable to thecolored race -- the
right to exemption from unfriendly
legislation against them distinctively
as colored -- exemption from legal
discriminations, implying inferiority
in civil society.
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Strauder v. W.Va (1879)

The colored race, as a race, was


abject and ignorant, and in that
condition was unfitted to command
the respect of those who had
superior intelligence. Their training
had left them mere children, and as
such they needed the protection
which a wise government extends to
those who are unable to protect
themselves. They especially needed
protection against unfriendly action
in the States where they were
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Civil Rights Cases (1883)

It is State action of a particular


character that is prohibited. Individual
invasion of individual rights is not the
subject-matter of the 14th
amendment.
Harlan, dissenting
I cannot resist the conclusion that
the substance and spirit of the recent
amendments of the Constitution have
been sacrificed by a subtle and
ingenious verbal criticism.
School Integration - Parents
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Timeline

1954 - Brown states legal


segregation inherently unequal and
stigmatizing
1968 - Green v. New Kent eliminate
dual system root and branch
1971 Swann perfect balance not
necessary
1972 Rodriguez v. San Antonio 14th
Amendment does not protect poor
per se
1974 Milliken do not interfere with
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Timeline

1985 Missouri v. Jenkins KC schools


vestiges of legal segregation must
be eliminated via desegregative
attractiveness
1995 Rehnquist: equity must be
limited to direct effects of de jure
discrimination
Magnet district evades Milliken bar
on inter-district remedies
Thomas: liberal racists assume
black is inferior
Ginsburg: long history of racism
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Parents Involved v.
Settle Community
School District
551 U.S. 701 (2007)

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The issue per C.J. Roberts

[W]hether a public school that had


not operated legally segregated
schools or has been found to be
unitary may choose to classify
students by race and rely upon that
classification in making school
assignments.

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C.J. Roberts
"racial classifications are simply too
pernicious to permit any but the
most exact connection between
justification and classification,"
Fullilove v. Klutznick, 448 U.S. 448,
537 (Stevens, J., dissenting)
The way to stop discrimination on
the basis of race is to stop
discriminating on the basis of race.

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There is no violation to remedy

The Seattle schools were never


segregated by law nor subject to
court-ordered desegregation

The desegregation decree to which


the Jefferson County schools were
previously subject has been
dissolved.

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Breyer 3 compelling interests

First, there is a historical and


remedial element: an interest in
setting right the consequences
of prior conditions of
segregation and preventing resegregation.
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Breyer 3 compelling interests

Second, there is an educational


element: an interest in
overcoming the adverse
educational effects produced by
and associated with highly
segregated schools.
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Breyer 3 compelling interests

Third, there is a democratic


element: an interest in
producing an educational
environment that reflects the
"pluralistic society" in which our
children will live
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Justice Kennedy - in Seattle (2007)


Fifty years of experience since Brown
v. Board of Education, should teach
us that the problem before us defies
so easy a solution.

School districts can seek to reach


Brown's objective of equal
educational opportunity.
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Kennedy in Seattle (2007)

Schools may be race conscious in:


Strategic site selection of new
schools
Drawing attendance zones
Allocating resources for special
programs
Recruiting students and faculty
Tracking enrollments, performance,
and other statistics by race.
Such general methods are not
subject to strict scrutiny
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Justice Kennedy
Parts of the opinion by The Chief
Justice imply an all-too-unyielding
insistence that race cannot be a
factor in instances when, in my view,
it may be taken into account.
The plurality opinion is too dismissive
of the legitimate interest government
has in ensuring all people have equal
opportunity regardless of their race.
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Justice Kennedy in Seattle (2007)


To the extent the plurality opinion
suggests the Constitution mandates
that state and local school
authorities must accept the status
quo of racial isolation in schools, it is,
in my view, profoundly mistaken.

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Justice Kennedy in Seattle (2007)


This Nation has a moral and ethical
obligation to fulfill its historic
commitment to creating an
integrated society that ensures equal
opportunity for all of its children. A
compelling interest exists in avoiding
racial isolation, an interest that a
school district, in its discretion and
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Kennedy - in Seattle (2007)

Diversity, depending on its


meaning and definition, is a
compelling educational goal a
school district may pursue.

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Kennedy in Seattle (2007)

In the administration of public


schools by the state and local
authorities it is permissible to
consider the racial makeup of
schools and to adopt general
policies to encourage a diverse
student body, one aspect of
which is its racial composition.
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Harlan, dissenting in Plessy (1896)

The post-war amendments had

a common purpose, namely, to


secure to a race recently
emancipated, a race that
through many generations have
been held in slavery, all the civil
rights that the superior race
enjoy."

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C.J. Burger in Swann v. Charlotte


Mecklenberg a Board might well conclude
In order to prepare students to live
in a pluralistic society each school
should have a prescribed ratio of
Negro to white students reflecting
the proportion for the district as a
whole.
To do this as an educational policy is
within the broad discretionary
powers of school authorities."
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Thomas, concurring

Today, the Court holds that state


entities may not experiment with
race-based means to achieve
ends they deem socially
desirable. I wholly concur in The
Chief Justice's opinion.
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Justice Thomas, concurring

My view of the Constitution is Justice


Harlan's view in Plessy:
"Our Constitution is color-blind, and
neither knows nor tolerates classes
among citizens."
Plessy v. Ferguson, 163 U.S. 537, 559
(1896) (dissenting opinion).

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Stevens, dissenting
The Court has changed significantly
since it decided School Comm. of
Boston in 1968. It was then more
faithful to Brown and more respectful
of our precedent than it is today. It is
my firm conviction that no Member
of the Court that I joined in 1975
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would have agreed with today's


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Stevens, dissenting

"Before Brown, schoolchildren


were told where they could and
could not go to school based on
the color of their skin."
This sentence reminds me of
Anatole France's observation:
The majestic equality of the law
. . . forbids rich and poor alike to
sleep under the bridges, to beg
in the streets, and to steal their
bread.
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Stevens, dissenting

I have long adhered to the view that


a decision to exclude a member of a
minority because of his race is
fundamentally different from a
decision to include a member of a
minority for that reason.
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