Many of us who attended Monday’s Supreme Court arguments in a pair of school integration cases are still reeling with a mix of emotions—pride, dejection, hope, and, at times, outrage.
In these cases, the Court will decide whether modest, voluntary efforts by Louisville, Kentucky and Seattle, Washington to keep their schools diverse and inclusive somehow violate the Constitution. It seems amazing that this question is even before the Court, but Monday’s argument made clear that even these meager, uncontroversial efforts are very much in jeopardy.
As we waited on line outside the Court, it was inspiring to see a huge crowd of students, parents, and other everyday folks marching in the cold to support integration.
As the arguments proceeded, it was heartening to see Seattle and, especially, the formerly-segregated city of Louisville, vocally defending their right to protect inclusion and the promise of Brown vs. Board of Education.
And it was stirring to hear Justice Breyer’s eloquent explanation of why careful efforts to promote integration fulfill the core purpose of the 14th Amendment and are clearly constitutional.
The Court’s other three moderate members—Justices Stevens, Souter, and Ginsberg—appear to agree with Justice Breyer that these communities’ efforts are not just constitutional, but vital to the future of our increasingly diverse and interconnected society.
All eyes, however, were on Justice Anthony Kennedy who, with the departure of Sandra Day O’Connor, is now the ideological center of the Court and the key swing vote in cases like these. Justice Kennedy began his questioning (in the Seattle case, which was argued first) in measured tones that seemed to reflect an effort to balance competing interests. But as the two hours wore on, the tone and content of his questions were often troubling.
Perhaps most distressing, Justice Kennedy seemed actively resistant to the reality that promoting inclusive and integrated education—which he appears to support as a compelling governmental interest—necessarily requires an intentional consideration of the demographics of the students who attend the schools.
Kennedy repeatedly asked about school siting decisions (i.e., locating new schools in places calculated to draw an integrated student body), magnet schools, and other strategies that he presumed to be less focused on student’s individual characteristics. But, as the lawyers for Seattle and Louisville pointed out, those communities had tested and considered a range of efforts, and found them to be ineffective. And, as we’ve seen in voting rights cases, the drawing of attendance zones (like electoral districts) still requires a consideration of individual demographics.
More hopefully, Justice Kennedy seemed impressed with Louisville’s successful transition from a community with enforced segregation to one in which residents and their elected officials are actively choosing integration.
Ultimately, it seems the key to how these cases are decided, will be whether Justice Kennedy accepts the reality of what’s required to achieve integration in any meaningful way.
The argument also offered plenty to be angry about. First, there was the Court’s rejection of the NAACP Legal Defense Fund’s request, as a litigating “friend of the court” in these cases, to share the school districts’ argument time—a request that the schools supported. The absence of a voice for communities of color or civil rights—and the presence of the Bush Administration, which is opposing the integration plans—created a stunning scenario: Two city school districts (one of them segregated as late as 2000) arguing with dissenting white parents and an anti-civil rights Bush Administration about the future of integration in America. That there was no racial or gender diversity among the lawyers arguing the case made the scene all the more stunning.
Also striking was the fact that the Seattle and Louisville lawyers—though able and committed—were not constitutional or civil rights experts, nor were they experienced Supreme Court litigators. The eloquence and expertise of Ted Shaw, Director-Counsel of the NAACP Legal Defense Fund, was especially missed at the argument.
Another source of outrage was the hostile and at times offensive commentary of Justice Antonin Scalia. No one was surprised that Justice Scalia believes these plans to be unconstitutional. He has never voted to uphold a program designed to promote diversity or integration in education. But the tenor and content of his comments in Monday’s case were, at times, breathtaking. Most striking was his implication that only a white-controlled school board could be assumed to have benevolent motives in adopting an integration plan, while the same action by a majority-black school board would be inherently suspect. The following exchange—between Justice Stevens, Justice Scalia, and Solicitor General Paul Clement (who presented the Bush Administration’s position) reflects a bit of Justice Scalia’s position:
GENERAL CLEMENT: Absolutely. And it also has some real world consequences when we decide we're not going to apply the normal scrutiny we would to racial classifications just because we've made some -- I don't know based on what judgment that in this case, it is benign, so we can trust the local school officials.
JUSTICE STEVENS: Well, it isn't that we've made a judgment, the local school board has made a judgment which has a lot of experience under both systems.
GENERAL CLEMENT: There's a lot of experience in Brown, too, and those were local school boards, too. And I think the lesson is --
JUSTICE SCALIA: Do we know the race of the school board here? I mean, that was not -- how do we know these are benign school boards? Is it stipulated that they are benign school boards?
GENERAL CLEMENT: I missed that in the joint stipulation, Justice Scalia.
You can hear the full oral argument of the Louisville case by clicking here, and the Seattle case by clicking here.
The other remarkable theme that we heard from Justice Scalia, the Solicitor General, and Chief Justice Roberts was that considering students’ race to promote integration and inclusion is the constitutional and moral equivalent of considering race to promote segregation and exclusion. This is just the kind of twisted analysis, detached from our country’s past, present, and future, that many Americans feared when they opposed Roberts’ elevation to the position of Chief Justice.
Justice Alito, for his part, was more nuanced in his questions, focusing on the details of the two plans. But his questions also seemed strongly to indicate that he believes these plans to be unconstitutional, at least in their specifics.
So how should we think and talk about these cases in the months before the Court announces its decision? We think it’s important to:
- Point out the flawed logic and constitutional theory that underlay many of the Justices’ questions—as well as the Bush Administration’s position;
- Hold up the enlightened comments of Justice Breyer and his moderate colleagues on the Court; and
- Communicate our hope that Justice Kennedy will come to grips with the real life implications of this case and its importance to the future of our nation.
Looking forward, it will be important to encourage communities to promote integration to the full extent allowed by the Court’s decision, once it’s announced. And, beginning next year, it will be crucial to demand of the new leadership of the Senate Judiciary Committee that they refuse to confirm judicial nominees who do not show an understanding of our nation’s history and current reality, or of the proper role of the Equal Protection Clause.
