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Miguel Gavaldón
Keith Kamisugi
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The Real Significance of the
Supreme Court's School Desegregation Decision

 By Erwin Chemerinsky

A member of EJS's advisory board, Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University. He was named founding dean of UC Irvine’s law school, effective July 1, 2008.

The Supreme Court’s decision in its last term limiting school districts in their ability to achieve desegregation is not a sudden turning away from Brown v. Board of Education.

The Court abandoned Brown 30 years ago and the most recent decision is simply a continuation of that sad pattern which has led to American public schools being increasingly racially segregated.  The recent decision, Parents Involved in Community Schools v. Seattle School Dist. No. 1, will make it harder for schools to desegregate, but its greatest significance is its signaling a Court likely to order an end to affirmative action programs in colleges and universities across the country. 

The Supreme Court’s actual commitment to Brown’s promise of equal educational opportunity was remarkably short. In the first decade after Brown, the Supreme Court decided almost no additional cases about school desegregation and little changed.  In 1954, at the time of Brown v. Board of Education, only 0.001% of African-American students in the South attended majority white schools.  In 1964, a decade after Brown, it was just 2.3%.

For the decade after 1964, great progress was made.  From 1964 to 1986, there was significant progress: from 13.9% in 1967, to 23.4% in 1968, to 37.6% in 1976, to 42.9% in 1986, to 43.5% in 1988.  Courts, including the Supreme Court, aggressively pursued desegregation.  Congress, in Title VI of the 1964 Civil Rights Act, provided a key enforcement mechanism by denying federal funds to institutions that engaged in race discrimination.    The percentage of students attending desegregated schools declined significantly.

But then in the early 1970s, the Court turned its back on Brown.  In 1973, in Rodriguez v. San Antonio Board of Education, the Court ruled, 5-4, that significant disparities in funding schools do not violate the Constitution.  A year later, in Milliken v. Bradley, the Supreme Court ruled, again 5-4, that remedies for segregation could not extend city boundaries to include suburban schools.   With many major city school systems having minority populations of 80 to 90 percent, effective desegregation was greatly limited by the inability to include students from suburban schools in the remedial efforts.  The result of these decisions is school systems that are increasingly separate and unequal.

In the early 1990s, the Court took another significant step away from the promise of Brown when it held that court desegregation orders should end, even when doing so will mean resegregation, once a federal judge determines that the district has complied with previous desegregation orders.   After the Supreme Court decisions of the 1990s, Oklahoma City v. Dowell, Freeman v. Pitts, and Missouri v. Jenkins, lower courts ended many existing, successful desegregation orders with the predictable result of increased racial separation.

The result, even prior to the Supreme Court’s recent decision, has been increasingly racially segregated schools.  Three-quarters of African-American and Latino school children attend predominantly minority schools and white children are even more likely to attend racially isolated schools. 

The earlier cases involved when courts could impose remedies for desegregation, the recent decision, Parents Involved in Community Schools v. Seattle School District No. 1,  concerned when school systems on their own can take steps for desegregation.  The Court struck down plans in Seattle and Louisville to achieve desegregation, in part, by assigning students to schools based on their race.   To be sure, the Court’s decision will make effective desegregation even more difficult and many effective desegregation plans now will be vulnerable.

Chief Justice Roberts opinion was joined in its entirety only by Justices Scalia, Thomas, and Alito. Chief Justice Roberts rejected that there is a compelling government interest in racial diversity and broadly endorsed the principle that the government must be color-blind.

But Justice Kennedy, who joined in striking down the Seattle and Louisville programs did not join this aspect of Chief Justice Roberts’ majority opinion.  Justice Kennedy accepted that desegregation and racial diversity are compelling government interests and that school systems may use race in drawing attendance zones and building new schools.   He, however, will allow race to be used in assigning particular students to schools only if there is proof that no race neutral alternative could succeed.  Kennedy’s opinion means that some techniques to achieving desegregation remain, though they are still greatly limited.

The grave effect of the decision may be with regard to dooming effective college and university affirmative action programs.   Just three years ago, in Grutter v. Bollinger, the Court ruled, 5-4, that colleges and universities have a compelling interest in having a diverse student body and that they may use race as one factor in admissions decisions to benefit minorities and enhance diversity.   Justice O’Connor wrote that opinion for the Court and she now has been replaced by Justice Alito who unquestionably will vote differently.

In the recent school desegregation decision, Chief Justice Roberts' majority opinion emphatically endorsed the view that the Constitution requires that the government be color-blind.   It is ironic that the Court’s conservatives who profess a need to follow the original meaning of the Constitution pay no attention to it here.  There is no doubt that the framers of the Fourteenth Amendment did not see it as requiring color-blindedness by the government.  The Congress that ratified the Fourteenth Amendment created numerous programs to benefit racial minorities and it also voted to segregate the District of Columbia public schools based on race.

The Roberts plurality opinion left no doubt as to where Scalia, Thomas, and Alito will be when the issue comes before them as to whether Grutter should be overruled.  And it must be remembered that Justice Kennedy dissented in Grutter and has voted against affirmative action in every case since he came on the Supreme Court.

Color-blind college and university admissions will have a dramatic effect in lessening the presence of African-American and Latino students at colleges and universities.  California has seen this as a result of Proposition 209, which was adopted by the voters in 1996 and has had a devastating effect on racial diversity in the state’s elite public universities.  For example, last year, only two percent of the entering class at UCLA were African-American.

Progressives must find new ways of achieving diversity at all levels of schooling.   Following Justice Kennedy’s opinion, desegregation plans must be developed that use race, but not in assigning particular students to specific schools.   New ways of achieving diversity in colleges and universities must be developed and implemented. 

Parents Involved in Community Schools is a major step backwards in the quest for racial justice. But it is a setback, not the end of the fight.