Civil Rights Case Comment 121 Harv. L. Rev. 131

The Supreme Court and Voluntary Integration


This past Term, the Supreme Court wrote the latest chapter on school desegregation. In Parents Involved in Community Schools v. Seattle School District No. 1, a fractured Court struck down two voluntary school integration plans, one from Seattle and the other from Jefferson County, Kentucky. The Court found neither plan sufficiently narrowly tailored to survive strict scrutiny. A four-Justice plurality, in an opinion by Chief Justice Roberts, seemed inclined to go further and rule that voluntary integration does not advance a compelling interest, thus completely prohibiting the use of race in student assignments. But the opinion only hinted in that direction. Justice Thomas, who joined the plurality’s opinion in full but wrote a separate concurrence, would have taken that extra step and prohibited most if not all attempts to achieve racially integrated schools, which he described as an elitist fad.

Justice Kennedy provided the proverbial fifth vote, joining the Court’s opinion but not the plurality’s. He also wrote a separate concurrence to make clear that he would approve some consideration of race to achieve some measure of integration under some circumstances. Justice Breyer wrote a lengthy and passionate dissent, joined by Justices Stevens, Souter, and Ginsburg, which focused almost exclusively on the plurality’s opinion. Justice Stevens wrote a separate dissent, which asserted that the decision was a radical break from precedent. All of the Justices who wrote, like the parties and amici in the case, fought over who was more faithful to Brown and whether that decision today requires colorblindness or permits affirmative steps to assist and protect minority students.

There are many things one could say about this case, and undoubtedly much will be said in the months and years to come. Some will focus on doctrine and methodology, others on what the decision suggests about the direction of the Roberts Court, and still others on the views of individual Justices. Tempting as it might be, I cannot cover all of these topics in depth in one brief essay. Instead, I would like to discuss how this case fits within the broader context of school desegregation and education reform, and I would like to concentrate on a seemingly simple question: is this decision important and, if so, why?

My answer is mixed. On the one hand, this decision does not change much on the ground. The truth is that racial integration is not on the agenda of most school districts and has not been for over twenty years. Modern education reform efforts might still share the goal of equalizing educational opportunities for minority students, which the Court in Brown embraced. But integration is not generally the means of choice to achieve that goal, nor is the Supreme Court the key arena. Advocates and reformers have turned their attention elsewhere, and today battles are waged in legislatures and in state courts over school funding, school choice, standards and testing, and access to preschool. The dominant question, moreover, is which of these reforms will improve academic achievement as measured primarily, if not exclusively, by standardized test scores. The idea that schools should also teach students from diverse backgrounds how to cooperate in preparation for citizenship, like the idea of integration, has been pushed into the background.