University Times

In June, a fractured — and at times sniping — U.S. Supreme Court rendered a landmark decision that prohibited the use of race as the sole factor in integrating public schools and declined to recognize racial balancing in schools as a compelling state interest. The nine justices issued 178 pages of sharply disagreeing opinions that in certain instances included taking critical shots at their colleagues.

Pitt law school Dean Mary Crossley, in introducing a Sept. 17 panel discussion of the decision, said, “This case was widely viewed as the most important case on the court’s docket in this last term. The decision was much anticipated because of its potential implications on school integration and for diversity efforts in higher education.”

The discussion, which focused on Parents Involved in Community Schools v. Seattle School District No. 1 (Seattle), was part of Pitt’s activities on Constitution Day, the federally designated day established to commemorate the anniversary of the signing of the U.S. Constitution.

“We wanted to bring to bear not only legal perspectives on the case but other perspectives from other fields critical to our understanding of the full range of implications of this important case,” Crossley said.

The panelists were:

• Lia Epperson, professor of constitutional law at Santa Clara University’s School of Law, who has served as director of education with the NAACP Legal Defense and Educational Fund.

• Janet Schofield, professor and social program chair in Pitt’s Department of Psychology and senior scientist at the Learning Research and Development Center, a nationally recognized social science scholar whose work was cited in both the majority and dissenting opinions in Seattle.

• Eugene Lincoln, an attorney and associate professor in Pitt’s School of Education, who has taught a range of courses at Pitt on race-based policies in the educational system.

The discussion was moderated by Deborah L. Brake, who joined the Pitt law faculty from the National Women’s Law Center in Washington, D.C., where she litigated cases challenging sex discrimination. Her courses at Pitt include equality and discrimination as well as constitutional law.

Brake said the Supreme Court decision in Seattle simultaneously struck down a lower court ruling in a Louisville, Ken.-based case, Meredith v. Jefferson County Board of Education (Louisville).

“Both cases raise substantially the same issue of how to interpret the equal protection clause of the 14th Amendment,” Brake said. “Essentially, they both sought to foster or maintain a specified level of racial diversity in public schools — in Seattle’s case, a high school, and in Louisville’s case, a primary school — and loosely keep the demographic ratios of the community in order to keep their schools from becoming racially identifiable.”

The school districts in Seattle and Louisville were challenged under the equal protection clause by parents of white students who did not get into their preferred schools because race was used as a “tiebreaker” for transferring students to oversubscribed schools, she said.

Chief Justice John Roberts was joined in his majority opinion by Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy. Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Suter dissented.

“Writing for a slim majority of five, Chief Justice Roberts wrote that equal protection does not countenance the use of race ‘simply as an effort to achieve racial balance,’” Brake said. “Writing even more forcefully, but this time not joined by Justice Kennedy, Justice Roberts wrote, ‘The way to stop discrimination based on race, is to stop discriminating on the basis of race.’”

In cases where parts of an opinion are not supported by a majority, the narrower opinion represents the holding, called a “plurality,” Brake explained. So, Kennedy’s opinion — known as a “concurrence” in legal parlance — represents part of the holding of the case, but in this instance also indicates a strong division of opinions.

“These cases really fractured the court,” Brake said. “Both sides divided bitterly over who was being more faithful to the heritage of Brown v. Board of Education,” the 1954 landmark decision that stuck down the “separate but equal” legal principle previously in force, she said.

“Justice Breyer wrote one of the lengthiest dissents I’ve ever seen in print, taking issue with every single argument in the majority opinion and lambasting the court for drawing on the legacy of Brown as its centerpiece as completely at odds with the decision in Brown.”

Justice Thomas, in a separate concurrence, wrote a passionate and heated opinion, comparing the dissenters’ opinion to those of segregationists in the Brown case. “If our history has taught us anything, it has taught us to beware of elites bearing racial theories,” Thomas wrote, adding a snipe at principal dissenter Breyer: “Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.”

Brake said Stevens wrote a short, passionate dissent, ending with the statement, “It is my firm conviction that no member of the court that I joined in 1975 would have agreed with this case’s decision.”

“And in what will surely be one of the most scrutinized single opinions in memory,” Brake said, “Justice Kennedy differed from the majority. He wrote an 18-page opinion in which he carved out a position somewhat different from both the majority opinion and the [principal] dissent.”

LIA EPPERSON

The Kennedy concurrence as a roadmap for future voluntary race-conscious approaches

Epperson said the Supreme Court in Seattle veered from its own 2003 decision in Grutter v. Bollinger — its first pronouncement on the use of race in education in decades — which recognized as a compelling state interest the goal of achieving a diverse student body in higher education.

That decision was applauded by affirmative action supporters, she noted.

Epperson said there are three notable parts of the Grutter decision: The court acknowledged the need for policies to address racial inequality in American society; the court quoted directly from Brown and saw the Grutter decision as a continuance of the spirit of Brown, that is, that students of all races benefit from racially integrated education, and the court gave deference to institutional judgment, that is, the suggestion that universities can develop policies that they feel best serve the needs of their students.

In the Seattle decision, she said, the court directly referenced the Grutter opinion in building an avenue for employing constitutionally approved race-conscious policies that remedy a history of identified discrimination or by developing policies that are meant to increase student body diversity.

“So on that front, it did reaffirm the earlier opinion in Grutter,” Epperson said. “However, the court held that these two plans were not sufficiently narrowly tailored to satisfy the court’s requirement in the equal protection clause. So the question is: Does the use of flexibility in Grutter that applied to higher education apply to grade and secondary schools? The short answer is: ‘No, it’s not as flexible.’”

That’s the bad news, Epperson said.

“What’s the good news? Since Justice [Sandra Day] O’Connor’s retirement, Justice Kennedy is now known as the barometer of the court, so it’s important to note that Justice Kennedy only joined with the majority in its narrow holding that these two plans are not sufficient to provide strict scrutiny.”

Kennedy diverged from the court’s plurality decision in a number of important ways, Epperson said, including with respect to acknowledging the persistence of residential and racial segregation, the importance of fostering racial inclusion and the constitutionality of race-conscious plans to do so.

“Justice Kennedy talks about the fact that our Constitution is not colorblind, and that that cannot be a universal constitutional principle,” Epperson said. “The hope is that race shouldn’t matter, but the reality is that too often it does matter in our society.”

Kennedy views Roberts’s tidy conclusion — “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” — as much too simplistic for such a complicated issue.

In his concurrence, Kennedy also acknowledges the harm of racial isolation, writing: “A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population” — although Kennedy qualifies the latter part by adding that “race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered.”

Epperson said, “To the extent that the [majority decision] suggests or even mandates that state and local authorities must accept the status quo of racial isolation in schools — Kennedy says they are profoundly mistaken.”

Kennedy also acknowledges the need in certain circumstances for race-conscious measures to address the problem of racial inequalities, Epperson said.

“I take heart that the justices who signed on with Justice Breyer’s opinion would essentially agree with these particular parts of Justice Kennedy’s opinion, so together they would make a majority,” she said.

Where Kennedy differs from the dissenting opinion is in the area of narrow tailoring, maintaining that policies should pay more attention to consistency, transparency and necessity, Epperson said.

“He had a problem with the Seattle voluntary plan that divided students into two categories — white and nonwhite — when the school district is actually much more racially diverse,” she said.

Kennedy also suggests more transparency, that is, that a plan describe how, why and to what extent race is being used.

“When he mentions necessity, that may be where the rubber meets the road,” Epperson said. “A district would have to demonstrate that significant gains in integration and the benefit of integrated schools can only be achieved by using a race-conscious plan.

“I would suggest that the concurrence of Justice Kennedy is quite pivotal, and we can look at that concurrence as a possible roadmap in terms of indicating the types of policy that may be available in the future.”

JANET SCHOFIELD

What social science research shows about the issues

Schofield served on a National Academy of Education (NAE) panel convened to evaluate the social science research that was cited in the amicus briefs filed in Seattle.

“NAE has a history of issuing reports on subjects of great public import related to education,” Schofield said. “In this particular report the idea was to produce an independent summary and analysis of the social science data cited in the briefs supporting both sides of this case, recognizing that those briefs are produced to argue for one position or the other.”

Three kinds of researchers served on the panel: methodology experts who assessed what any given piece of research actually said and whether it supported the claims it purported to support in a brief; educational researchers who have produced some work related to desegregation or racial balance but who normally work in other areas, in order to bring fresh perspective to the issues, and researchers like Schofield who are known for long-term involvement with relevant research and have a reputation for non-ideological approaches to it.

The panel, which eventually issued a 60-page report, reviewed 64 amicus briefs, roughly half of which contained social science research in support or opposition to voluntary race-conscious approaches to desegregate public schools.

“After reviewing those briefs, we came up with five general questions that were addressed in the research,” Schofield said.

Those questions were:

• Is racial diversity in schools associated with improved academic achievement?

• Does racial diversity improve short-term inter-group relations?

• Does racial diversity improve long-term inter-group relations?

• Is there a critical mass necessary to achieve the benefits of racial diversity in schools?

• Are there alternative race-neutral policies that would result in racially diverse schools and whatever benefits they might produce, so that one wouldn’t have to consider race?

The most common issue broached in the pro and con briefs, Schofield said, was whether racial diversity in classrooms has improved minority students’ achievement. “Those who argue that the answer is ‘yes’ were trying to show that the state has a compelling interest in racial diversity because of that link to improved academic achievement,” Schofield said.

“Interestingly, only 10 percent of the 80 studies that were cited were cited by both sides, suggesting the importance of an independent assessment,” she said. The briefs that were supportive of race-conscious student assignment policies cited nearly four times as many studies as those that were against it, she noted.

Regarding the second question, whether racially diverse schools are associated with improved inter-group relations in the short term, the report notes that the supporters of racial diversity cite many more studies than those arguing against such policies. “It was about 3:1 and there is a little more overlap in research studies cited for the pro and con sides,” Schofield said.

“For example, there is a meta-analysis that basically summarizes about 500 studies that is cited repeatedly by supporters, less so by non-supporters, who cited it only to say it was not relevant,” she said. “The panel decided it was pertinent and it concluded that although racially diverse schools and classrooms do not guarantee better inter-group relations, generally speaking they are likely to be quite successful in that regard.”

The research on whether school and classroom diversity is associated with long-term outcomes focuses on whether experiences in racially diverse schools have an effect on later-life choices, such as choosing to live and work in racially mixed settings, she said.

“The report concluded that experiences in racially mixed schools do in fact tend in the long run to reduce expectations of hostility, to improve comfort in racially mixed settings and create acceptance of diverse settings in the adult’s life,” Schofield said.

The panel felt it could not answer definitely the question of whether a critical mass is necessary — or what that mass might be if it were necessary — to enjoy the benefits of school diversity. “The report did conclude that a lot of research suggests that problems arise for minority students when there is a tiny minority, but we can’t say what size is needed to get over that.”

The main conclusions of the report, Schofield said, can be summarized as follows:

• Research suggests that African-Americans’ achievement is enhanced in less-segregated schools; in addition, that effect is typically more pronounced in earlier grades than later grades.

• White students’ academic achievement typically is not harmed by desegregation or racially balanced schools.

“Although these were conclusions that the panel reached quite comfortably, the report does not present racially diverse schools as a silver bullet that will automatically erase the achievement gap between white and African-American students,” Schofield said. “However, it does conclude that, overall, racially diverse schools do tend to enhance academic achievement, which is relevant to whether the state has a compelling interest in fostering such schools.”

The NEA panel also examined race-neutral alternatives, which opponents of race-conscious policies say can be used to better achieve a compelling state interest.

“There are a number of race-neutral strategies that could potentially be used to increase racial diversity, such as private schools, charter schools, magnet schools and the like,” Schofield said. “There is not a large amount of research in these areas. Still, we felt quite able to come to the conclusion race-neutral strategies often do not end up enhancing racial diversity.”

Another commonly suggested race-neutral strategy is to use economic status as a factor in assigning students to a school, the idea being that by using economic diversity, racial diversity also will result, she said. This has been tried in many school districts and in some cases it has worked, she said.

“But there is a very strong study that showed in large urban districts assigning students based on a high level of economic diversity can still have a high level of segregation,” Schofield said. “The reason is that although the economic average of African Americans on the whole is lower than whites, there still is a dramatic overlap, and if one considers cost and transportation time, you may end up with socio-economically diverse white schools and socio-economically diverse African-American schools, Spanish, Asian, et cetera.”

The implications of the NEA report suggest that the Seattle decision is not encouraging in that it inhibits potential academic and social benefits, she said. “The report argues that racially diverse schools create academic and social benefits. For academic benefits, one can possibly find other ways to get them, but social benefits are very hard to get in racially segregated schools.”

EUGENE LINCOLN

Applying the Seattle decision to hypothetical examples

“I would like to offer some sense of how I read these cases based on a few hypotheticals that show some of the problems in applying the Supreme Court’s decision,” Lincoln said.

In a nutshell, he said, under the strict scrutiny standard, the state, defined as a public university, school district or any other such entity, must show that a race-conscious plan serves a compelling state interest, is necessary to achieve that interest and is narrowly tailored to achieve that interest.

“Plaintiffs in each case filed a lawsuit in federal district court, arguing that assignment of students to a public school based solely upon a racial tiebreaker violates the equal protection clause of the 14th Amendment,” Lincoln said.

In both Seattle and Louisville, the Supreme Court reversed federal district court decisions, concluding that neither school district had met its burden of proof because neither student assignment plan was narrowly tailored to achieve the educational and social benefits that flow from racial diversity, Lincoln summarized.

“Let’s look at hypothetical No. 1: ‘racial and educational diversity v. racial tiebreaker’ and ‘v. no racial tiebreaker,’” Lincoln said. “From a constitutional point of view, if you’re talking about racial and educational diversity — that’s going to be constitutional in many instances.

“On the other hand, if you’re talking about racial tiebreaker in and of itself and all by itself, in many instances, that’s going to be unconstitutional.”

In his hypothetical scenario, Lincoln presented a mythical Public School District No. 1, which institutes a policy of classifying all athletes as either “white” or “nonwhite.” The school board also votes to dismiss all black head coaches, who are replaced with white head coaches. Under the district’s policy, athletes are picked for teams using race as a tiebreaker. As a result of the tiebreaker policy, the three-year starting quarterback, a superior athlete who is black, loses his place on the team to a less-talented white freshman.

“Filing a lawsuit in federal court, the black quarterback’s parents argue that this policy is in violation of the equal protection clause,” Lincoln said. Based on the Seattle decision, how should the courts rule?

“I think they would say that the tiebreaker is unconstitutional,” Lincoln said.

However, if the school district instituted the same measures of replacing black head coaches with white coaches, and the white freshman made the team in place of the black all-star — but these were not based on a policy of racial tiebreaker — how would the courts rule on the lawsuit filed by parents of the black athlete?

Under the Seattle decision, Lincoln believes this scenario would pass constitutional muster.

“Is the outcome any different? I don’t think so,” he said. “In my mind a policy, a regulation, a statute are one and the same: The school district is saying do this and do that. The key question to ask is: Is there a policy or practice that appears race-neutral on its face, but as applied has a disparate impact upon a racial group that can be traced to a racially discriminatory purpose? Is there a policy? No. Is there a practice? Yes.”

In another hypothetical example, a school district classifies its students as black and “other” for statistical purposes. Thirty percent of the students are black. During a recent school year, 50 percent of the black students were suspended and 10 percent were expelled. In contrast, among the 70 percent “other” students, 2 percent were suspended and 1 percent were expelled. Of the school district’s professional staff, 2 percent are black.

Parents of the black students file a lawsuit based on equal protection claims, arguing that the suspensions and expulsions of the black students are in violation of the 14th Amendment.

“How should the courts rule? Is there a possible causal relationship between the number of black students suspended and expelled and the low percentage of black professionals in the district?” Lincoln asked. “There is a practice that as applied has a disparate impact on a racial group. Sometimes you don’t see a specific policy or statement, but you’ve got to read between the lines.”

Lincoln summarized his own opinions on the Seattle case, which largely echo the Supreme Court’s dissenting view. “Student body diversity is a compelling state interest. Therefore, assignment of students to a public school based upon student diversity does not violate the equal protection clause.”

Moreover, race may be considered a positive factor among other factors, because student body diversity provides educational benefits, promotes learning and outcomes, prepares students for an increasingly diverse society and prepares students to live in the real world, he maintained.

“A diverse student body — and that may be defined to include different races, sexes, nationalities and cultural backgrounds — is not only a compelling state interest in public schools but also in higher education and throughout society. Strict scrutiny also will be applied where the law — policies, practices, bylaws and the like of any public entity — may appear race-neutral on its face, but as applied has a disparate impact upon a racial group that can be traced to a racially discriminatory purpose.”

—Peter Hart