by Bryan K. Fair
It's that time of year again, when Supreme Court watchers are
quite anxious. The term has nearly ended, but a few of the most important
cases await final decision. The two cases I remain most concerned about are
from Seattle, Washington and Jefferson County, Kentucky. They
involve voluntary desegregation plans in public schools, and they ask the
Court to decide if those plans that make some limited use of race in
public school assignments, violate the constitution or federal law. The
lower federal courts have in both cases upheld the local policies on the
grounds that achieving or maintaining educational diversity is a
compelling governmental interest and that both plans are narrowly-tailored.
That is judgespeak for we have read what the Supreme Court said in Grutter and Gratz, the Michigan affirmative action cases from two terms
ago. But that Supreme Court no longer exists.
So, what can we expect from the
Roberts/Kennedy Court. The answer for me is, not much. First, in
our great country, there is no federal constitutional right to education.
Also, there is no right to equal funding of educational opportunities.
And, there is no constitutional guarantee to equal curricular offerings.
Jonathan Kozol has eloquently described the savage inequalities in American
schools, but I do not expect this Court to use these cases to declare such
disparities inherently unequal and inconsistent with the Equal Protection
guarantee. It seems much more likely that this Court will equate these
modern desegregation policies with former segregation policies, turning the
Equal Protection Clause against the children it was supposed to help.
Despite fifty years under Brown v. Board
of Education, the law in the United States has not protected educational
equality. Even more, this is another illustration how the law simply
serves the interests of the rich and powerful; it doesn't remedy systemic
inequality. It is absurd to expect the rich and powerful to use the law
against their privileges. Instead, the law and its great expositor, the
Supreme Court, will always underserve those seeking substantive reform.
This is the dark side of the law.
Second, this conservative Court believes that the
best way to end discrimination is to ignore race in every context. But
such color-blindness does not end discrimination. It ignores it and its
effects on the lives of the most vulnerable Americans: those children who attend its worst schools,
in its worst neighborhoods. The Court has reminded us recently how
dysfunctional some school systems are, but its critique arose in the context of
spending public money on vouchers at religious schools. I just don't
think members of the Court really understand or care how trapped some kids are by
educational inequality. If they did they would read the Constitution far
more broadly and correct the massive disparities in our public schools,
imposing on school officials an affirmative constitutional duty to create one
public school system for all Americans, not one for the rich and one for the
poor, or one primarily for wealthy whites and a second for the poor of whatever
color. It would take courage to announce my rule and I don't look to this
Court for much of it.
Third, the Court has been asked to determine if the
same principles that guided the Court in the Michigan affirmative action cases
to uphold a limited use of race to achieve educational diversity, should apply
in the K-12 context. Since Justice Kennedy was a caustic opponent to Grutter, I think it is quite likely that
he will join Roberts, Alito, Scalia, and Thomas to strike down even this very
limited use of race as one of many factors in school assignment plans.
When he does so, he will, in effect, endorse the current resegregation of American
schools and overrule the letter and spirit of Brown. And the victims will be more generations of vulnerable
kids, denied again an equal chance at the American Dream/Lie. I hope I am wrong, but I think it is quite possible
that Justice Kennedy will have his moment to reverse affirmative
action in higher education as well. His dissent in Grutter was not measured and cautious. If he believes it was
wrongly decided as he has said, and if he has now the votes to overturn it, I
expect him to seize the day.
Fourth, I am an integrationist and the best
I can hope for from this Court is a sharply divided decision, with
multiple concurrences and dissents, and little at all about the important
legacy of Brown. If the
opinion is fragmented, it is often difficult for lower courts to find common
meaning and we will have to wait for future Courts to clarify what the law
is. That offers little consolation if President Bush's replacement
makes similar appointments to the Court. Fifth, regrettably, the Court will surely miss
another opportunity to teach the nation about what Thurgood Marshall called the
generative power of the Constitution. If I were on the Court, I would
explain the difference between policies advancing invidious racial bias
and those advancing integration. The Court said in Brown that segregation was inherently
unconstitutional. It declared that segregation by the government stigmatized
colored children in ways likely never to be undone. I would explain that
promoting integration is inherently constitutional and that educational
integration may be our last best chance at undoing our deep legacy of
segregation. I would explain that there is a constitutional difference
between assigning all educational benefits to whites, for example, versus
telling whites and others that integration is a paramount goal and to
achieve it a few families will not get their choice of schools. And I
would explain how this contest for placement at good schools is inconsistent
with equal protection. Every child is constitutionally entitled to a
good school. It always amazes me that the modern conservative
Supreme Court so easily acknowledges the constitutional hardship of a few
wealthy or white people, but it has such difficulty seeing the cumulative
disadvantage of millions of persons who still suffer from generations of
racial exclusion. Too often, the Court has turned the Constitution on its
head, interpreting it to provide no relief for those with the greatest need, in
this case for meaningful education so they can improve their lives. Yet,
it seems the Supreme Court is quite often least helpful when it is most
needed.