All classes are cancelled Monday, January 21, in celebration of Martin Luther King Day. Instead, Northwestern Law features a number of discussions and presentations related to segregation. The day’s events kick off with a mock Supreme Court oral argument of Parents Involved in Community Schools v. Seattle School District, which involved a challenge by parents to the use of race-based criteria in apportioning students to public schools. __ U.S. ___, 127 S.Ct. 2738 (2007) (link). The Court’s plurality decision held that the Seattle and Jefferson County public school systems had used racial classifications in an unconstitutional manner.
Professor Presser, arguing along with Simar Singh for appellants, observes that “[among] other things the case certainly does present the question about whether and when it is constitutional to ‘count by race,’ a question probably still left very unclear.” Professor Elson, arguing along with Kerry Slade for respondents points out that “[as] the voting redistricting, peremptory challenge cases and de jure desegregation cases demonstrate, all the Justices agree that governmental use of racial selection criteria is justified under certain circumstances.”
As Professor Elson indicates, in today’s arguments the issue of de jure segregation may prove critical. The debate between Chief Justice Roberts and Justice Breyer indicates a difficulty in distinguishing de jure (state-mandated) from de facto (non-state) segregation: While Seattle never had an explicitly discriminatory educational policy, parents have complained that Seattle’s pre-plan school districting effectuated segregation. Community Schools at 2752 (Roberts, C.J.); id. at 2803–04, 2823–24 (Breyers, J., dissenting). Additionally, Professor Elson asserts that “governmental actions . . . for almost four centuries have entrenched racial inequality in education as well as other aspects of American life,” thus, most segregation may be presumptively de jure.
Also interesting in the decision is the extent to which diversity is a compelling interest that Seattle’s plan appropriately addresses. Appellants in today’s mock oral argument may, and Roberts did, discuss implications of “[a]ccepting racial balancing as a compelling state interest.” Community Schools at 2758. Roberts concluded that it “would justify the imposition of racial proportionality throughout American society” with no logical stopping point. Id. Ms. Slade plans to argue that “[public] schools constantly make choices about what values are paramount to education . . . [if] diversity is a compelling interest at the higher-education level, it follows . . . that it must be . . . at the elementary and secondary school levels as well. Children are the most impressionable in the young ages, so it is critical that they be exposed to diverse settings when they are young.”
Data do indicate that diverse education drives voluntary future social and workplace integration, potentially undermining the notion that balancing schools leads to coercive balancing of society in general. Community Schools at 2821–22 (Breyer, J., dissenting). But, as Professor Presser and Mr. Singh will no doubt argue, Justice Kennedy is correct that there is significant factual uncertainty to whether Seattle’s plan is helpful or necessary to obtaining diversity and its benefits. Seattle’s plan fails to differentiate between non-white groups, and affects only a small proportion of students. Community Schools at 2790–91 (Kennedy, J., writing separately and concurring on this point). Arguing that Seattle’s plan is still constitutional, Ms. Slade intends to argue that “[states] have always been considered laboratories for social experiments, and local control of education is a strong American tradition.”
But perhaps, as Professor Presser
suggests, “what’s interesting about the case is that both the
majority and dissenting opinions in the actual Supreme Court case
claimed to be operating squarely within the dictates of the landmark
Brown v. Board of Education case.” Professor Elson asserts
that Roberts’ opinion “is evidence of how far the federal
judiciary has retreated from the principles of racial equality from
the Brown v. Board of Education era since there is no question
that the Brown Court would have applauded voluntary efforts of
school districts to promote the integration of Black students into
White schools.” In fact, Justice Stevens states that “it
is [his] firm conviction that no Member of the Court that [he] joined
in 1975 would have agreed with [the Community
Schools] decision.” Community
Schools at 2800 (Stevens, J.,
dissenting). However, appellants may argue that, today, race-based
criteria counterproductively produce stigma and tension rather than
integration, thus qualifying as the very discrimination that Brown
sought to eliminate.
Professor Andy Koppleman will moderate
the proceedings in front of a panel of Judge Ruben Castillo, Judge
Dianne Wood, and Professor Steven Calabresi.
The day’s activities continue after
the mock argument, no matter the victor. After a short lunch, the
Director and General Counsel of the NAACP Legal Defense Fund,
Theodore Shaw, will give the day’s keynote speech. Later in the
afternoon, a panel will discuss how race should inform healthcare,
including whether scientific evidence warrants racial classification
in medical research and treatment.
A full schedule of events, hosted by the student-run D.R.E.A.M. Committee, can be found at the organization’s website, http://www.law.northwestern.edu/dream. Please come and join the Northwestern community as we celebrate the achievements and ongoing legacy of Dr. King.
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