'Brown' down but not out

August 8, 2007 by Maya Harris, Daily Journal

During my years in law school, I learned the elementary principle that every law school teaches: Without context, the law is only words on paper. History gives law meaning. To follow the letter of the law without honoring its spirit is to lose the flower of justice in the weeds of formalism.

It's a fundamental lesson that appeared lost in the recent U.S. Supreme Court decision striking down voluntary integration plans in the Seattle and Louisville, Ky., public schools, Parents Involved in Community Schools v. Seattle School District, 551 U.S. (2007). Chief Justice John Roberts, who wrote the court's decision, took pains to justify his conclusion that the school districts' plans were unconstitutional by quoting from legal briefs filed in another watershed case about integration, Brown v. Board of Education. 347 U.S. 483 (1954).

By invoking the memory of Brown, Roberts tried to equate efforts to eradicate legalized segregation with present-day attempts to create racially diverse schools. Because Seattle and Louisville used race as a factor to desegregate their schools, their integration plans, reasoned Roberts, were no different than past efforts that exploited race to separate and exclude. "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race," he wrote. Plain and simple.

But what of the historical context of Brown? Had Roberts forgotten that Thurgood Marshall, the African-American lawyer and future Supreme Court justice who argued the Brown case, was urging the court to breathe spirit into the letter of the Constitution's promise of equality for all and chart a brave new course for the nation? Had he forgotten that the crisis of segregation was so alarming and so damaging that the court's decision would define us as a nation? Had he forgotten that Chief Justice Earl Warren, who penned the Brown decision, worked tirelessly to convince all nine justices - who hailed from both the North and South - to sign onto the majority opinion so that the court could speak with one powerful voice in repudiation of the archaic doctrine of "separate but equal"?

Unlike the unanimous decision in Brown, the court's recent decision was bitterly divided. And it is no wonder.

For several justices, Roberts' use of Brown to dismantle efforts to achieve the very integration that Brown had promised was a distortion of the case's unifying legacy - a "cruel irony," Justice John Paul Stevens wrote in dissent.

"The chief justice rewrites the history of one of this court's most important decisions," Stevens said. "It is my firm conviction that no member of the court I joined in 1975 would have agreed with today's decision."

Justice Stephen Breyer, in an emotional opinion read from the bench, reminded his colleagues: "In this court's finest hour, Brown v. Board of Education challenged th[e] history [of segregation] and helped to change it." Brown, said Breyer, held out a "promise of true racial equality - not as a matter of fine words on paper, but as a matter of everyday life in the nation's cities and schools."

Justice Anthony Kennedy rejected Roberts' simplistic application of the letter of Brown as "too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race." In a separate opinion of his own, Kennedy wrote: "The enduring hope is that race should not matter; the reality is that too often it does."

History teaches us that far from ignoring race, the Brown court explicitly used it as a tool of inclusion. Recognizing the significant social context in which the Brown decision was made, later courts upheld the use of race to integrate, equalize and harmonize society, instead of allowing segregation to persist.

Although he concurred with Roberts' conclusion that the Seattle and Louisville plans were unconstitutional, Kennedy clarified that Roberts' opinion implied "an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account."

Kennedy's words leave the door ajar for school districts trying to implement integration plans that fulfill both the letter and spirit of Brown. Fortunately, a majority of the justices reaffirmed that the government has a compelling interest in avoiding racial isolation and achieving racial diversity in public schools. The court made clear that a range of affirmative measures, including some race-conscious ones, are still available to districts across the country that are seeking to create racially diverse educational environments to fulfill their educational mission.

This is particularly important here in California, where, in the shadow of Proposition 209, public schools are as segregated today as they were nearly 40 years ago.

Despite this challenge, there are examples of success. Earlier this year, an Alameda County Superior Court judge threw out a legal challenge to Berkeley Unified School District's elementary and high school student assignment plans, finding that the district does not violate state law by considering the racial demographics of students' neighborhoods along with other factors in assigning students to schools. The judge upheld the plan because it does not consider any individual student's race or grant any so-called "racial preference."

In his dissent, Justice Breyer warned that last month's decision will be one that "the court and the nation will come to regret." But we don't have to live with such regret.

All of us - parents, advocates, school administrators, elected officials - have a role to play in continuing the hard but critically important work of creating racially diverse public schools. Let's maximize the tools we still have available to promote equal opportunity and inclusion in California's educational system.
     
Maya Harris is the executive director of the ACLU of Northern California. The ACLU is representing Berkeley Unified School District parents in supporting the district's student assignment plan.