The Roberts Court: The Struggle for the Constitution (7 page)

Ironically, the district’s rejection letter was a mistake. The diversity plan did not apply to kindergartens. However, the wheels of litigation were about to roll quickly.

“I was not told my son could not go to Bloom,” Meredith said referring to the school she wanted. “I was told he could not leave Young—to go anywhere. I was told by the school board that my son’s education was not as important as their plan. I was told I should sacrifice his learning in order to maintain the status quo. I was told by the school board appeal committee that the only way my son could go to another school that was a better fit for him was for us to move—to another county!”
⁹

(The school board challenged Meredith’s version of her experiences. In its brief in the U.S. Supreme Court, it said Meredith never appealed the denial of her transfer request and did not indicate early in 2003 a choice other than Young for her son’s enrollment in 2003–04. She had testified in the lower court that it took her son twenty minutes to get to
Young and she had to drive him, but the school board said it made bus transportation available to Joshua.)

By the time Brose and Meredith were fighting with their school boards, the legal and political landscapes surrounding school desegregation and affirmative action had shifted dramatically from the days when both were considered critical remedies for discrimination.

Despite the Supreme Court’s epic
Brown v. Board of Education
decision of 1954 invalidating state laws mandating school segregation, the Court did little in the following decade to make clear what steps could be taken to remedy prior segregation, remaining mostly silent until 1968. In that year, the Warren Court, named for Chief Justice Earl Warren, decided
Green v. County School Board
, a case from rural eastern Virginia. Frustrated with the slow pace of desegregation, the Court emphasized: “School boards, such as the respondent, then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”

Writing for the unanimous Court in
Green
, Justice William Brennan Jr., referring to the command in
Brown v. Board of Education
and
Brown II
, added, in a footnote, “We bear in mind that the court has not merely the power, but the duty, to render a decree which will, so far as possible, eliminate the discriminatory effects of the past, as well as bar like discrimination in the future.” (
Brown II
was the Court’s follow-up decision to the 1954 landmark ruling. The justices held that localities should act “with all deliberate speed” to comply with the mandate to desegregate schools.)

Three years later, in 1971, the Burger Court followed the
Green
decision with
Swann v. Charlotte-Mecklenberg Board of Education
, which, recognizing that “white flight” to private schools and the suburbs made school integration impossible in many segregated districts, approved busing students across cities and city-county boundaries. Busing triggered
a huge white backlash and strengthened a growing conservative political movement.

In 1973,
Brown
’s command to eliminate discrimination “root and branch” was heard not just in the South but in the North and West as well when the justices decided
Keyes v. School District No. 1
, a case out of Denver, Colorado. The Denver school system had never operated under a constitutional or statutory provision that mandated or permitted racial segregation in the public schools. However, a group of parents charged that the school board, through a variety of techniques and policies, created or maintained racially and ethnically segregated schools. The Burger Court, in an opinion by Brennan, with Associate Justice William Rehnquist dissenting, held that such intentional policies may constitute unconstitutional de jure segregation.

This period coincided with the presidency of Richard Nixon, who had campaigned on law-and-order and anti-busing platforms. Nixon was determined to try to reverse the activism of the Warren Court in criminal justice and procedure. He made four appointments to the Supreme Court during his first term: Burger; Rehnquist; Lewis F. Powell Jr.; and Harry Blackmun. Those appointments would change the course of the Court’s belated school desegregation efforts.

As the school desegregation scholar James E. Ryan has explained: “There were two problems with the Court’s new commitment to integration: it came late, and it was short-lived. By the time the Court became serious about integration in
Green
,
Swann
, and
Keyes
, many urban school districts in and outside of the South had become predominantly black, which obviously made integration harder if not impossible to achieve. In many metropolitan areas, meaningful integration would have required that suburban schools participate in desegregation plans.”
¹⁰

But the Supreme Court was not going to allow that to occur. The Burger Court’s 1974 decision in
Milliken v. Bradley
was the start of a conservative shift in its desegregation rulings. The
Milliken
ruling prohibited cross-district busing without proof of district gerrymandering. The
lower federal court had found that a Detroit-only desegregation order would not effectively desegregate Detroit city schools and ordered cross-district busing because there simply were not enough white students in the city school district who could be shifted around within it to accomplish desegregation. As Ryan explained, proof that the school board was consciously gerrymandering attendance zones “was hard to come by, in part because housing discrimination kept most African-Americans out of the suburbs, so there was no need to play around with school district boundaries in order to keep suburban schools mostly white.
Milliken
effectively halted the progress of desegregation just a few short years after the Court became serious about it.”
¹¹

Chief Justice Burger wrote the majority opinion in
Milliken
and was joined by the three Nixon appointees—Justices Blackmun, Powell, and Rehnquist—and Potter Stewart, nominated by President Dwight Eisenhower.

“The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district,” wrote Burger. “Unless petitioners drew the district lines in a discriminatory fashion, or arranged for white students residing in the Detroit District to attend schools in Oakland and Macomb Counties, they were under no constitutional duty to make provisions for Negro students to do so.”

Ironically for what was to come later in the Seattle and Louisville cases in the Roberts Court, Burger also spoke directly to the power of local school boards to manage education within their districts. He wrote:

“Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.”

Justice Thurgood Marshall, one of four dissenters, called the decision
“an emasculation” of the constitutional guarantee of equal protection. “Our Nation, I fear, will be ill-served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.”

Six years later, in 1980, a young Harvard Law School graduate named John Roberts Jr. walked into the Supreme Court to begin his clerkship with Associate Justice William Rehnquist, who, after he became chief justice in 1986, would lead the Court’s withdrawal from the school desegregation effort as well as a retreat from affirmative action.

The Court did little with school desegregation in the 1980s, explains Ryan, but the Rehnquist Court took up three cases in the early nineties that would get federal courts out of the business of overseeing school districts’ integration plans:
Board of Education v. Dowell
in 1991 (a 5–3 decision by Rehnquist);
Freeman v. Pitts
in 1992 (8–0 decision by Justice Anthony Kennedy); and
Missouri v. Jenkins
in 1995 (5–4 decision by Rehnquist).

Between 1969 and 2006, the year the Seattle and Louisville lawsuits reached the Supreme Court, presidents made fourteen appointments to the Court, twelve of which came from Republican presidents. Many of the later desegregation and affirmative action rulings were the work of the Court’s conservative majorities, more often than not by 5–4 margins.

“Constitutional interpretation involves judicial discretion; judicial discretion reflects political ideology; and conservative justices tend, unsurprisingly, to subscribe to the conservative racial ideology of the party that appointed them,” wrote the Harvard legal historian and constitutional law scholar Michael Klarman, author of
From Jim Crow to Civil Rights
, after the Seattle-Louisville decisions in 2007. “That ideology embraces a narrow, formalist conception of what counts as race discrimination; abhors the use of racial preferences, whether benignly motivated or not; and deems this nation’s ugly history of white supremacy as something more to be repudiated than remedied.”
¹²

With court orders to desegregate schools slowly being withdrawn, a second wave of legal challenges arose, challenges to
voluntary
school plans designed to prevent racial isolation or resegregation. The newly formed Roberts Court now would be asked to step back onto the battlefield of school integration to answer whether race could be used in this context. And this time, those asking would not be parents seeking to force recalcitrant school and state officials vested in a discriminatory educational system, but parents who themselves felt discriminated against by the good faith efforts of school officials to maintain racial diversity in their schools.

“In order to get beyond racism, we must first take account of race.”

—Justice Harry A. Blackmun, 1978

B
y the time her daughter graduated from middle school in June 2000, Kathleen Brose and the other parents in her group knew that despite their intense lobbying efforts, the Seattle school board was not going to change the assignment plan.

“When we started talking about a lawsuit, a lot of people got scared,” remembered Brose. “That’s a pejorative term, a real negative. But we just didn’t know what else to do. Nobody wants to go into a lawsuit. We weren’t thinking national at all; we were just thinking local. It was just about our city.”
¹

But a lawsuit meant finding a lawyer, and for this particular type of lawsuit, that could be a difficult task in one of the most liberal and Democratic cities in the country.

Conservative libertarian lawyers in Washington, D.C., like to joke that because their numbers are so small, they can meet in a phone booth. Conservative Republican lawyers in Seattle, chuckled one member, need a little more space—perhaps a closet.

Word went out through the right channels, however, that the PICS group was thinking about a lawsuit. Dick Deran, a well-known advocate of conservative political causes and a retired attorney from Seattle’s Davis Wright Tremaine, contacted a young, energetic fellow believer, Harry Korrell III, a Davis Wright partner who focused on litigation
and employment law. At about the same time, Sharon Browne of the conservative Pacific Legal Foundation in Sacramento, California, also was approached by some of the parents.

Korrell eventually took the lead, along with Davis Wright partner Dan Ritter, on the Seattle lawsuit, with Browne and her foundation providing support at each stage of the case. Browne also would become deeply involved in the Louisville litigation.

The Pacific Legal Foundation, the oldest conservative public interest litigating organization, was established in 1973 and describes itself as “devoted to a vision of individual freedom, responsible government, and color-blind justice.” Its founders, Ronald Zumbrun and Raymond Momboisse, had been advisers to California governor Ronald Reagan during Reagan’s campaign in the state legislature for welfare reforms. They looked for a way to counter liberal public interest groups who challenged those reforms in the courts.
²

With advice from another Reagan adviser at the time—Edwin Meese, who would become attorney general of the United States after Reagan’s election as president—and with funding from the California Chamber of Commerce and other groups, Zumbrun and Momboisse launched the foundation. Today, it has four offices and nearly twenty attorneys on staff who work in three main areas: defending private property rights, challenging environmental and governmental regulations, and fighting racial preferences.