BY OHIA AMADI
On Wednesday, November 29, a large group of concerned students and community members gathered in the Ames Courtroom to assess the continued relevance of the landmark desegregation case Brown v. Board of Education. The panel, entitled “Is Brown Still Relevant?: The Seattle & Louisville School Cases,” was motivated by then-pending oral arguments for the two cases, which took place in the U.S. Supreme Court this past Monday. Panelists for the event, primarily sponsored by the Charles Hamilton Houston Institute for Race & Justice and moderated by HLS professor Charles Ogletree Jr., included John Brittain, Esq., Chief Counsel & Senior Deputy for the Lawyers’ Committee for Civil Rights Under Law; Susan Eaton, Research Director for the Charles Hamilton Houston Institute for Race & Justice; Dennis C. Hayes, Esq., General Counsel for the NAACP; Kimberly Jenkins Robinson, Assistant Professor of Law at Emory School of Law; Theodore M. Shaw, Esq., Director-Counsel & President for the NAACP Legal Defense & Educational Fund; and Michael Sterling, National Chair of the National Black Law Students Association.John Brittain led off the panelists, giving background on the two desegregation programs and the likely legal analysis they would undergo. The Seattle case, Parents Involved in Community Schools v. The Seattle School District, involved a high school integration plan that sought to maintain a racial balance within 15% of the district’s overall makeup, which was 60% non-white. Meredith v. Jefferson County [Kentucky] Board of Education, on the other hand, involved an elementary school integration plan which sought to maintain a black student population at the district’s 15% minimum. Both plans took into consideration factors such as proximity of students to the choice school and whether or not students had siblings at the school, using ethnicity as a final “tie-breaker.” Brittain added that the Washington and Kentucky suits, by attacking voluntary desegregation remedies, essentially threatened the last remaining vestiges of Brown. Though the lower courts have ruled for the school districts, the threat is real nonetheless. Last year, prior to the departure of Justice Sandra Day O’Connor, the Supreme Court denied hearing a similar Massachusetts case, Comfort vs. Lynn. Thus, the Court’s grant of certiorari in the two pending cases suggested an ideological shift since Justice O’Connor’s retirement. Brittain further stated that the Court’s decision would likely be based on a line of “strict scrutiny” cases of which the University of Michigan decisions of 2003 are part. Under the strict scrutiny analysis, the Court would have to find that the school districts had a compelling state interest underlying their integration plans and that the plans in place employed the least restrictive means. Echoing an earlier assertion by Prof. Ogletree, Brittain saw Justice Anthony Kennedy as the pivotal vote in an expected 5-4 decision.Theodore Shaw was the next to speak, making it clear that he was unhappy with the current state of segregation discourse in the United States. He was unhappy with the challenge to voluntary desegregation, a remedy he argued was historically a secondary and less effective alternative to mandatory remedies, which have been all but eliminated in the school desegregation context. He was further dismayed by the “hijack[ing] of the rhetoric of the civil rights movement” by the opposition. Such usurpation was evidenced in white students denied transfers under the integration plans, comparing their position to that of black students pre-Brown and even going “further to say that they are stigmatized.” Shaw saw a fundamental dislocation in that reasoning, as the basis for the white students’ transfer denial was lack of desegregative effect – not because they were thought to be intellectually inferior as blacks were pre-Brown. He found further inconsistency in desegregation case law which depicts race as the idiomatic, untouchable “third rail” and condemns any remedy that is “race conscious as racism.” He argued that minorities face a situation where the courts are being asked to make decisions that are far weightier than the narrow issues before them. At issue in the narrow sense is the constitutionality of voluntary integration plans, but the broader issue and what is at stake is the ability to do anything about racial inequality. Faced with the undeniable and systematic reduction of remedies originally available under Brown, Shaw took a realist perspective. Recognizing the financial disparity inherent in school segregation, he said, “[The] [r]eality is, like it or not, we have to figure out a way to make separate really equal and nothing in our experience as a nation has taught us we can do that.”Kimberly Jenkins Robinson spoke next, discussing the more technical issue of judicial deference in the context of school diversity programs and strict scrutiny. The question was whether the Court would give deference to the school districts’ judgment on the “compelling state interest” and/or the “least restrictive means” prongs of the strict scrutiny analysis. The rationale for deference to the school districts’ judgment was grounded in the Court’s reasoning that school boards are the appropriate means for desegregation and not the courts. Robinson concluded that the best choice for the Court would be to give deference to the school districts’ judgment, and by so doing, not substitute its own.By the panel’s end, the title question of whether Brown was still relevant had been answered with a resounding yes. Speaker Susan Eaton, who has spent significant amounts of time studying impoverished schools, enumerated the deleterious effects of present-day segregation. This segregation often pairs schools with high concentrations of minority students with concentrated poverty. Such concentrated poverty, she argued, resulted in problems ranging from overwhelmed educators and high teacher turnover to bad reputations for the schools among institutions of higher learning to unpredictable financial and community support. She drew one of her more poignant anecdotes of the disparities caused by concentrated poverty from a Hartford, Connecticut high school where, for five years in a row, the valedictorians graduated and had to take remedial English at the post-secondary level. She also drew attention to a seemingly, invidious tactic in which the outperformance of specific, high poverty schools was used to downplay the need for integration by essentially saying that underperforming schools were just not trying hard enough. The final speaker, Michael Stearling, a 3L from the Thurgood Marshall School of Law, further buttressed the argument for Brown’s relevance referring to acts of racial insensitivity at a number of colleges and universities around the country; one of the most egregious of these acts being a recent “Ghetto Fabulous” party thrown by students at the University of Texas Law School, in which partygoers dawned afro-wigs, gold chains and other accoutrements as caricatures of African-Americans. In closing his portion, Dennis Hayes made a few points which seemed to embody the guardedly optimistic outlook of the panel. He said that those fighting for integration should not expect the “back and forth” between increasing and decreasing means to effect desegregation to end any time soon. The resistance to Brown should not be underestimated, because those who oppose these attempts at desegregation are just as passionate, organized and at least as equally well funded as those fighting for it. As such it is a hefty job, and one that cannot be accomplished by lawyers alone. Instead, lawyer and non-lawyer alike must join forces and work together to finally bring the long-held dream of integration into reality. However, this past Monday that dream may have hit a very real stumbling block. Even as protests by those in favor of the desegregation plans – and to a lesser extent those opposed – raged just outside, oral arguments took place within the Supreme Court chambers in Washington, D.C. Many groups were represented in the protests, inclu
ding Harvard’s BLSA, the NAACP, Howard University, and NOW. But regardless of the protestors’ vigor, if the hostility of Chief Justice Roberts’ and Justice Kennedy’s questions during the oral arguments are any indication, the school districts face an uphill battle.For those interested in viewing a recorded version of the Brown panel, streaming video is available through the HLS website at http://www.law.harvard.edu/news/2006/11/30_brownvboard.php.
Members of Harvard Law School’s BLSA attended a rally in Washington, D.C. on Monday, December 4 to support voluntary integration plans.
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