Wednesday, September 20, 2017

Voluntary Integration Decision Takes Center Stage in Debate over Eighth Circuit Judicial Nomination

Parents Involved v. Seattle Schools is back in the news again, although for different reasons.  This time involves a judicial nominee’s interpretation of the case.  Earlier this month, President Trump nominated Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals.  Thus far, Senator Franken is exercising his right under traditional senate rules regarding home-state senators to block Stras’ appointment.  One of the topics of conversation is Stras’ approach to civil rights issues, including an essay he wrote on Parents Involved v. Seattle Schools.

Parents Involved is the most recent and potentially last decision our Supreme Court will ever decide on school integration.  As such, the holding in Parents Involved may be the final door through which all future efforts toward integrated schools must past.  It is, in effect, the book end to Brown v. Board of EducationBrown began as a challenge to the intentional segregation of students by race.  In Parents Involved, the school districts had not engaged in intentional segregation.  Rather, they had more recently taken race into account to try to eliminate school segregation that stemmed from housing patterns.  The question was whether they could do so.

Although involving very different factual circumstances, both cases establish basic and wide ranging principles of school integration law.  And for that reason, both cases also implicate a struggle over the fundamental vision of equality in schools and attempt to articulate a vision to an audience far broader than the lawyers.  To be clear, Parents Involved is no Brown v. Board of Education, but it is no ordinary case either.  It requires the careful attention of jurists, education leaders, and communities.

So what exactly did the Court hold?  The most popular answer among law students is that the Court held that the voluntary integration plans in the case were unconstitutional.  They are correct on that score, but the real question is why they are unconstitutional.  Most students assume that the Court refused to find a compelling interest to pursue integration.  That is not true.  The Court held that the plans were not narrowly tailored. 

Five Justices found that the districts had a compelling interest to pursue diversity and integration.  If they did not have a compelling interest, there would have been no reason to move to the second question of narrow tailoring.

Justice Kennedy is the swing vote on both points.  Justice Kennedy was emphatic that school districts have a compelling interest in pursuing integrated schools, but they were not careful enough in doing so.  Four justices agreed with him that schools have justifications for integrating. 

Four different justices agree that the school districts’ methods were flawed.  All told, five votes support every position that Justice Kennedy took and no more than four votes support any other position on any other issue.  In short, there is no way to get around the fact that his opinion represents the holding of the court.

All three Courts of Appeals that have taken up the issue, along with U.S. Departments of Education and Justice, agree that Justice Kennedy’s opinion is controlling. 

This uniform judgment, particularly on a case of such importance, is what makes David Stras’ prior essay on Parents Involved curious.  He wrote “many in the media and blogosphere are putting way too much emphasis on Justice Kennedy’s separate opinion in these cases.”  First, he reasons that there was not “that much distance between the [Chief Justice Robert’s opinion striking down the integration plans] and Justice Kennedy on most of the important issues in this case.”  Second, “Justice Kennedy’s opinion is only controlling to the extent that it differs from” certain parts of Roberts’ opinion. He then offers his third and main point: commentators inappropriately “assume the constitutionality of race-conscious alternatives on the basis solely of Justice Kennedy’s separate opinion.”  He goes so far as to call this assumption “especially dangerous.” 

Stras’ perspective is curious because it overlooks key details in the Court’s opinions and does so with a skepticism of school integration.  His point appears to be to minimize the importance of Kennedy’s crucial decision, rather than accept its’ import: racial diversity and integration are compelling interests and states are free to pursue them under a number of different circumstances.

Kennedy’s own words negate Stras’ argument that there is not much distance between the plurality opinion and Kennedy’s.  Justice Kennedy indicates that he is perplexed that the plurality would seemingly bar the consideration of race in all contexts and require districts to ignore de facto resegregation in schools.  Thus, Kennedy writes the plurality is “too dismissive of the legitimate government interest” school districts have in pursuing integration and he “cannot endorse” the plurality's opinion, which he calls “profoundly mistaken.”  He writes that “diversity . . . is a compelling educational goal a school district may pursue,” as is “avoiding racial isolation.”  The plurality, in contrast, writes that the only compelling interests are remedying past discrimination and pursuing diversity in higher education.  In short, the difference between Kennedy and the plurality could not be further on the key issue of whether a district can pursue voluntary integration.

Stras’s second point, arguing that there was not much controlling analysis in Justice Kennedy’s opinion, is wrong if one carefully reads the case.  Stras’ essay may miss nuanced points because he over-interprets the plurality opinion by Chief Justice Roberts (the parts that Kennedy did not join) and under-interprets Justice Kennedy’s opinion. 

The plurality opinion is held together by a single precise phrase: “individual racial classifications.”  On first read, one might not notice that the plurality uses this phrase, as its opinion is otherwise broad and sweeping.  But the reason the plurality uses this phrase is that Justice Kennedy uses that phrase.  Justice Kennedy is willing to strike down the desegregation plans in Parents Involved not because they consider race, but because they rely on individual racial classifications.  Had they pursued other race conscious means to integrate, Kennedy’s own opinion indicates he likely would not have struck down the plans.  He would have agreed with the dissenters and, in doing so, those dissenters would have become the majority with five votes.  Thus, the distinction between individual race classification and general race classification is central to the holding and rationale of the case.  The entire case turns on Justice Kennedy’s articulation of this line and his judgment that the plans had crossed it.

To be fair, Stras acknowledges that Justice Kennedy’s opinion is controlling in most respects, but that only leads Stras to his third point that following Justice Kennedy’s in all respects is dangerous.  Following Justice Kennedy’s opinion might seem dangerous if Stras missed the nuanced distinctions regarding individual racial classifications.  This type of error on such an important issue is one that some would argue indicates that Stras is not careful enough to be on the Eighth Circuit. 

Or it might be that Stras thinks Justice Kennedy’s opinion is dangerous because Stras simply disagrees, as a matter of substance, with Justice Kennedy and is stretching to read Justice Kennedy’s opinion as narrowly as he can.  It is hard to say what drove Stras’ essay, but if it is the latter, those who are generally committed to civil rights are understandably wary of his nomination.

http://lawprofessors.typepad.com/education_law/2017/09/voluntary-integration-decisions-take-center-stage-in-debate-over-eighth-circuit-judicial-nomination.html

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