Compare and Contrast (Seattle-Louisville & Brown)

I’m going to be posting a lot more on the Seattle-Louisville decision, school integration, policy, history and my experiences, thoughts and feelings.

As I sort through the opinion, concurrences, dissents and reactions, I am struck by the contrasts in presentation (and content) between this decision and the Brown ruling and what these say about where we have been, where we have moved and where we are going as a nation.

The Brown decision was unanimous. The Court spoke with one voice; there were no concurrences or dissents. This was by design. Chief Justice Warren worked hard to make this happen because he wanted the Court to make a social or moral statement as well as a legal one. The Brown decision was short, about — 10 pages — because Warren wanted to speak to the American public and the world, not just lawyers, lawmakers and school policy people. The language was plain and the legalese minimal. Warren knew that this was a turning point in American history and he wanted that message to be clear to all. The Court was declaring that segregation was unconstitutional and wrong and that Federal power could be used to right this wrong. In the decades that followed Brown, Jim Crow apartheid fell due to the efforts of those who demanded that Federal power be used to redeem the promises of equality and equal access.

In part because of the desire for unanimity, the Brown decision left much unadressed, famously employing the contradictory phrase “all deliberate speed” in lieu of an actual remedy, but there was no question that the Court was telling states and school districts that they should act to eradicate segregation. This part of the message was clear. The lack of an explicit remedy was also in deference to the American tradition of state and local educational governance. This was made explicit in the 1971 Swann case:

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that 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.” 402 U. S., at 16.

The judgment of the plurality in the Seattle-Louisville (only four Justices concurred in full) radically differs from the Brown case in presentation, moral clarity and policy. Chief Justice Robert’s opinion is 48 pages long. With Justice Thomas’s concurrence, Justice Kennedy’s opinion, and the dissents from Justice Stevens and Justice Breyer, the package is 185 pages. With the exceptions of the historical section of Justice Breyer’s dissent and the introduction to Justice Steven’s dissent the writing is aimed at legal scholars. This is not a united Court seeking to communicate clearly to a broad audience.

As Justice Breyer makes clear, the issues before the Court are not much different than the issues the Brown court faced and nearly identical to those addressed in Swann and other cases, yet the plurality of this case offers justifications for equivocation instead legal and moral clarity. They say the “right things” about the value of diversity, but rule absurdly that school districts cannot use racial criteria to achieve racial diversity. Even Justice Kennedy (who joins in the judgment, but not the opinion) seems to demand that districts that desire racial diversity not employee racial-based means to achieve race-based goals.

It would be charitable to say that the lack of clarity and the contradictions and the legal nitpicking reflect the confusion of our society on racial issues, but I’m not feeling charitable. In 1954, when Brown was decided, at least half our nation was crystal clear on racial matters and the Court told them they were wrong (in the years that followed the Court also did much to clear up the “confusion” of the rest of the nation). So yes, I’ll grant that our society is confused, but I refuse to give the Supreme Court a pass on these grounds.

Writing in Slate earlier this week, Walter Dellinger and Delilah Lithwick made an important observation about the Roberts Court: “Chief Justice Roberts and Justice Alito—perhaps recalling their recent confirmation encomiums to stare decisis—have apparently decided to overrule cases without saying they are overruling them.” In his dissent, Breyer made a similar point: “The basic problem with the plurality’s technical dicta-based response lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today’s decision.” The confusion is deliberate, cowardly and dishonest. Roberts will not say that Brown and Swann and decades of other cases have been overruled, but Swann certainly has (along with all the voluntary desegregation and de facto segregation cases and plans) and Brown hangs on by the thin thread of a “narrowly tailored remedy” to only de jure segregation subject to strict scrutiny. This deliberate confusion does our schools and those who govern them a disservice. In the wake of this ruling, much of the discussion has centered on the Kennedy opinion and what sorts of policies might satisfy Kennedy and therefore withstand a legal challenge. Scholars may have fun with that, but most districts can’t risk it. Most districts will abandon any use of race in assignment and the trends toward greater segregation will continue.

I’m going to close with a quote from Brown and try not to shed a tear for all that has been gained and lost since then and all that today the Court said we can no longer seek:

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

Thomas J. Mertz

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