On June 28, 2007, the Supreme Court issued a split decision on integration in public schools in the consolidated cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education (PICS). The Court held that the voluntary integration programs used in Seattle and Louisville were unconstitutional, in part because race was used in a mechanistic way to determine where pupils were assigned to public schools. Drawing on the seminal case of Brown v. Board of Education, the Court rejected what it called racial balancing for its own sake.
The Brennan Center for Justice wrote a friend-of-the-court brief on its own behalf and on behalf of the Center for Constitutional Rights, Demos, the National Voting Rights Institute and the Puerto Rican Legal Defense and Education Fund in support of the prerogative of the schools to institute plans to maintain racial diversity. This brief argued that integrated public schools serve as the fora for educating young Americans to become tolerant citizens in a pluralistic nation.
In PICS the Court stated that whether a government used race for positive or negative reasons, strict scrutiny must be applied by reviewing courts. In equal protection jurisprudence, strict scrutiny requires that the use of race be justified by a compelling governmental interest that is narrowly tailored to achieve that goal.
The Court broke 4-1-4 on key aspects of the case, with Justice Kennedy penning the swing vote opinion. While Kennedy agreed that the programs used by Seattle and Louisville did not pass constitutional muster, Kennedy wrote [a] compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Kennedy also found that [d]iversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue. Kennedys decision opens the possibility for school districts to continue to battle the racially isolated schools that occur when schools reflect the residential segregation in the neighborhoods that surround them.
Because of the 4-1-4 split, PICS may have a similar effect as the Bakke case, which found that affirmative action was not constitutional in the case before the Court, but nonetheless was used to justify affirmative action programs that fostered diversity in higher education for a quarter of a century.
What both the Roberts plurality and Kennedys concurrence failed to properly grapple with was the democratic role played by public schools in educating the majority of American citizens. The original Brown v. Board decision addressed precisely this point. It recognized the importance of education to our democratic society and specifically noted that public education is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). This notion was also echoed in a latter case which found,
“School authorities. . . might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of . . .students reflecting the [racial] proportion for the district as a whole.” Swann v. Charlotte-Mecklenburg Bd. Of Ed., 402 U. S. 1, 16 (1971).
The majority discussed public schools as if they existed in some void divorced from the rest of the nation. Only the dissent recognized the deleterious effect that allowing public schools to re-segregate would have on our body politic. Justice Breyer, writing for the dissent, noted the democratic values at stake in the case.
“[T]here is a democratic element: an interest in producing an educational environment that reflects the pluralistic society in which our children will live. Swann, 402 U. S., at 16. It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation.”
With Justice Thomas concurring opinion, which concludes that no democratic element can support the integration interest, PICS is likely to be read as abandonment of both Browns inclusive ideals as well as Browns acknowledgement that the conditions under which Americans learn as children will effect the future interaction of adults in Americas democracy.
After this decision, any de facto segregated public schools are left with few tools to address this problem head on. Rather, they must attempt to remedy the problem indirectly. In the meanwhile, millions of school children in integrated schools may find their school assignments shuffled in a disruptive manner in the coming years as states adapt their programs to use race-neutral means to maintain diverse schools.