A Brown Study


Chief Justice John Roberts claimed in the Supreme Court’s backward-reeling White v. Black decision yesterday that “when it comes to using race to assign children to schools, history will be heard.”

But Justice Stephen Breyer, writing for the minority in protest of the 5-4 upending of Brown, gave the country not only a history lesson but also some lasting words to live by — something to get us out of this brown study caused by yesterday’s ruling.

Roberts distanced himself — and thus the entire country’s courts — from the democratic spirit by regarding racial equality as just another “verbal formulation”:

While the school districts use various verbal formulations to describe the interest they seek to promote — racial diversity, avoidance of racial isolation, racial integration — they offer no definition of the interest that suggests it differs from racial balance.

His past opinions, before he became the country’s chief justice, showed warmer regard for the rights of corporations than for the rights of people. But the depth of his icy disregard for the 1954 Brown decision was stunning.

Breyer warmed to the task. His memorable dissent is not only a good argument but good history.

Roberts said there was “no definition of the interest”? Here was Breyer’s take:

The compelling interest at issue here … includes an effort to eradicate the remnants, not of general “societal discrimination” [as Roberts’s opinion said], but of primary and secondary school segregation; it includes an effort to create school environments that provide better educational opportunities for all children; it includes an effort to help create citizens better prepared to know, to understand, and to work with people of all races and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. If an educational interest that combines these three elements is not “compelling,” what is?

Let the lawyers parse Roberts’s opinion; the rest of us can go to school on what Breyer wrote concerning Brown and all the history swirling around it, before it, and after it:

[Roberts’s opinion for the plurality of the court] pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown‘s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.

Context is everything, despite what such backward-time-travelers like Clarence Thomas think. Breyer noted:

The historical and factual context in which these cases arise is critical. In Brown, this Court held that the government’s segregation of schoolchildren by race violates the Constitution’s promise of equal protection. The Court emphasized that “education is perhaps the most important function of state and local governments.” 347 U. S., at 493. And it thereby set the Nation on a path toward public school integration.

In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Brown’s constitutional holding. The measures required by those cases often included race-conscious practices, such as mandatory busing and race-based restrictions on voluntary transfers.

And the current cases, lumped together by the court for one overarchingly hidebound ruling, were no different. The Roberts Court simply made an ideologically based decision. Breyer didn’t say it like that. But he tore apart Roberts’s contention that there was no “definition of the interest” concerning racial equality. Rightly, Breyer noted the strong “public interest,” but, then, Roberts is more comfortable with corporate interest than public interest. Breyer wrote:

The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U. S. 483 (1954), long ago promised — efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake.

This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.

As I said, Breyer’s dissent is also a history lesson. And some of the recent history he painted is grim. Yes, Brown of course sparked massive integration, but that trend was already reversing even before yesterday’s decision. More from Breyer:

[T]he Court left much of the determination of how to achieve integration to the judgment of local communities. …

As a result, different districts — some acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply with federal administrative orders, some acting purely voluntarily, some acting after federal courts had dissolved earlier orders — adopted, modified, and experimented with hosts of different kinds of plans, including race-conscious plans, all with a similar objective: greater racial integration of public schools. …

Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled.

Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South).

As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–100% minority. …

In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts.
The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories.

Roberts’s opinion danced around not only the topic of integration but also the word itself. He preferred to look with disdain upon what he called “racial balancing,” that buzz phrase used to good effect by foes of integration.

Unafraid to use the word “integration,” Breyer called him on it by defining the word, the concept, and its context. Here’s a civics lesson for your kids, courtesy of Breyer:

The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. Sometimes a court refers to it as an interest in achieving racial “diversity.” Other times a court, like the plurality here, refers to it as an interest in racial “balancing.” I have used more general terms to signify that interest, describing it, for example, as an interest in promoting or preserving greater racial “integration” of public schools. By this term, I mean the school districts’ interest in eliminating school-by-school racial isolation and increasing the degree to which racial mixture characterizes each of the district’s schools and each individual student’s public school experience.

Regardless of its name, however, the interest at stake possesses three essential elements.

First, there is a historical and remedial element: an interest in setting right the consequences of prior conditions of segregation. This refers back to a time when public schools were highly segregated, often as a result of legal or administrative policies that facilitated racial segregation in public schools. It is an interest in continuing to combat the remnants of segregation caused in whole or in part by these school-related policies, which have often affected not only schools, but also housing patterns, employment practices, economic conditions, and social attitudes. It is an interest in maintaining hard-won gains. And it has its roots in preventing what gradually may become the de facto resegregation of America’s public schools. …

Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools.

Third, there is a democratic element: an interest in producing an educational environment that reflects the “pluralistic society” in which our children will live. … It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation.