Thursday, June 28, 2007
Parents Involved v. Seattle School Dist.; Supreme Court Majority (5 Justices) Adopt Colorblindness Constitutional Standard
Parents Involved in Community Education v. Seattle School District No. 1, 551 U.S. ___(June 28, 2007), decided on the last day of the Supreme Court's October 2006 term is a 185 page decision which actually involves two cases. One case is from Seattle which never operated a segregated school system, but used a racial classification to decide "tiebreaker" applications to certain High Schools. The other case is from Kentucky which was under a consent decree until 2000 when the court found that the vestiges of prior segregation were eliminated. Like the Seattle school district, the Kentucky school district used a students race to rule on student transfer requests.
In Seattle, an organization (Parents Involved) and in Kentucky a parent of a student (Joshua) filed suit under the Equal Protection clause. In the Seattle case, the school district obtained summary judgment and that decision was affirmed in a lengthly decision by the 9th Circuit. In the Kentucky case, the school district prevailed below. Interestingly, the 6th Circuit decision in the Kentucky case was quite brief. The U.S. Supreme Court reversed both decisions.
Chief Justice Roberts, who wrote the judgment of the Court, stated that racial classifications are reviewed under strict scrutiny. Although remedying the effects of past intentional discrimination may be a compelling state interest, that standard did not apply here with respect to Seattle and the Kentucky case desegregation decree was dissolved. Very significantly, the Chief Justice Roberts distinguished Grutter v. Bollinger 539 U.S. 306 where student body diversity was held to be a compelling state interest in the context of higher education. This was because the diversity interest in Grutter did not focus on race alone, but also included other facts such as whether students overcame personal adversity or a family hardship.
Additionally, the means employed (racial classifications) only were of limited effect in achieving the schools objective. In Seattle, only a small number of students shifted. Similarly, in Jefferson County Kentucky, the use of racial classifications had only a minimal effect on school diversity. Classification and assigning school children on the basis of race "is an extreme approach" and requires more than an "amorphous end" to justify it. Both school districts also failed to demonstrate that they seriously considered methods other than explicit racial classifications to achieve their stated objective.
Additionally, the method used to determine racial diversity was illegitimate because there was no tie into the level of diversity necessary to achieve pedagogical benefits. Very significantly, Chief Justice Roberts' plurality rejected the idea that "racial balancing" was a compelling state interest and held that such "racial proportionality" was unconstitutional. As the Chief Justice stated:
This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that racial balance is not to be achieved for its own sake.
The Court's plurality decision is a giant step to requiring colorblindness with respect to all racial classifications. This is because to satisfy the strict scrutiny standard, the racial classification must be based upon past discrimination-a situation which we are moving further and further away from as society matures; or to meet diversity in higher education under a broad standard that does not just consider race. There must be some tie to educational value. Additionally, the plurality squarely rejects any notion of racial proportionality. "At the heart of the constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of racial, religious, sexual or national class."
Chief Justice Roberts even quotes with approval from the oral argument from Brown v. Board of Education for the proposition that:
We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.
At the end of Chief Justice Roberts 41 page plurality decision is also states: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
That statement together with others led Justice Breyer's 4 Justice dissent to state that the plurality was adopting a colorblindness standard. Additionally, Justice Thomas in his concurring opinion expressly adopted colorblindness and further stated that "[w]hat was wrong in 1954 cannot be right today." Moreover, he ended his opinion with Justice Harlan's famous Plessy v. Ferguson dissent. Most importantly, Justice Thomas expressly states Chief Justice Roberts' plurality decision adopted colorblindness.
Interestingly, I did not see in Chief Justice Roberts opinion an express discussion of colorblindness, though I agree that he is adopts this standard at least where there is no history of past discrimination. One must question why the Chief Justice did not expressly state that he was adopting a colorblind standard. I can only conclude that this is because the notion of colorblindness has deeply divided this country because with it most affirmative action programs will not survive constitutional scrutiny.
This is the first time that a majority of the Supreme Court has adopted colorblindness as constitutional doctrine. Therefore, this is a watershed constitutional law decision with respect to Equal Protection under the law.
Justice Kennedy's opinion was the swing vote. He did not adopt either Chief Justice Roberts' analysis nor Justice Breyer's analysis set forth in the 4 Justice dissent. Like all of the Justices, he would apply strict scrutiny. As part of this burden, the School Districts must establish how decisions based on race were made. The School Districts failed to meet this threshold mandate. Justice Kennedy pointed to factual discrepancies. For example, in the Kentucky case, there was no explanation as to why the guidelines at issue did not apply to kindergartens. There explanation as to why these racial classifications were necessary was also broad and they did not identify who made the decisions and how it was determined which of the two similarly situated children will be subjected to race based decision making. Seattle failed to explain why it simply characterized students as "white" and "non-white" when consideration is given to the fact that fewer than half of the students enrolled were white.
Justice Kennedy expressly rejected the notion of colorblindness and views that doctrine as merely an aspiration. "In the real world, it is regrettable to say, it cannot be a universal constitutional principle."
Justice Stevens wrote a relatively short dissent to express his views and he joined in the lengthly dissent by Justice Breyer. Stevens states that it is a cruel irony that the Chief Justice relies on Brown v. Board of Education. A rigid adherence to strict scrutiny, according to Stevens, "obscures Brown's clear message."
Justice Breyer wrote the dissent joined by three other Justices (Stevens, Souter and Ginsburg). He drew a distinction between school districts being required to adopt desegregation plans and where they voluntary chose to do so. The dissent also provides detailed factual and statistical analysis to support its conclusion that school districts need flexibility to prevent "the growing resegregation of public schools."
Breyer believes that the constitution permits the use of race-conscious criteria in limited ways to achieve "positive race-related goals, even when the Constitution does not compel it." He would accord school administrators deference in this type of decision making and pointed to numerous laws where Congress has approved of race-conscious statutes. Breyer does not state whether he believes that Chief Justice Roberts adopted a "colorblind" standard. Instead, he notes that he has found no cases that support Justice Thomas' colorblind approach.
Justice Breyer further states that context matters when reviewing raced-based governmental action. Remarkably, he states that "it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them," thus implying that a different test may apply when dealing with diversity. Though Breyer believes in a lesser form of strict scrutiny in such circumstances, he goes on and applies the existing strict scrutiny analysis to the facts and opines that the School Districts did not act in an unconstitutional manner.
Breyer does not see a difference in the term "diversity" from "racial balancing." Three interests justified the racial classification; the historical and remedial element; an educational element and a democratic element-that children need to "work and play together." The compelling interest here is the effort to eradicate the remnants, not of societal discrimination, but of primary and secondary school segregation. Breyer also cites to a number of decisions which have approved of race-conscious measures to combat segregated schools. According to Breyer' s dissent, diversity, is a compelling state interest in public schools even more so than in higher education.
This decision did not directly deal with affirmative action or employment discriminatation. However, it can be expected to directly effect affirmative action cases. Under this decision, it is doubtful that any voluntary affirmative action plan will survive where the employer has not been guilty of past discrimination. However, we will have to wait and see how the lower courts interpret this decision.
This decision is one of the longest I have ever read and it reminds me of the Bakke decision of some 30 years ago. There is something in this decision for everyone to pull from. Frankly, the decision is simply too long. The decision is too long to read in one sitting and too long to correctly analyze in a lawyer's brief. That invites lawyers, professors and students to take short cuts. In the future, I can only hope that the Court becomes more aware of the fact that "less is often more."
I have tried to keep this review relatively brief with that same hope in mind (less is more). I would be interested in hearing what others think of this decision.
Mitchell H. Rubinstein