[Other posts in the series:Blog and Media RoundupReaction to Justice Thomas' concurrenceReaction to Justice Breyer's dissentReaction to C.J. Roberts' opinionReaction to Justice Stevens' dissentReaction to Justice Kennedy's controlling concurrence
Opening thoughts (Parts I and II
In my post on Chief Justice Roberts' opinion
, I noted somewhat disparagingly his claim that Justice Breyer's dissent used "cataclysmic" rhetoric. Upon reading Breyer's opinion, I must admit I may have been a bit unfair to the Chief, for he opens up with guns blazing:
The plurality pays inadequate attention to this law, to past opinions' rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. (2)
At first, I Breyer's 77-page dissent struck me as somewhat pedestrian. Not that it was poorly argued--Breyer's opinion is carefully reasoned, tightly argued, and very compelling-- but that there were very few particular moments that stood out as "wow." But upon re-reading it, I am more convinced that there is a lot of important stuff in here, that deserves explication and comparison. So here we go.
The first location of note comes on page four, where Breyer lays out sobering statistics on segregation patterns in America.
More recently, however, progress [on desegregation] has stalled. Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–-100% minority. See Appendix A, infra. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts.
School districts, since 1980, have been slowly but steadily resegregating. The problem is worse
outside of the South, primarily because many Southern school districts are still under (or are only recently removed from) court-ordered desegregation plans that actually make a dent in segregation patterns. Places that are not under such orders and which do not (and, if the plurality had its way, could not) adopt such plans are resegregating rapidly.
Breyer then proceeds to give a long and detailed history of segregation in both Seattle and Louisville. The former is far more interesting, because contrary to the assertions of the plurality, Seattle had
admitted to de jure
segregation, it just settled the case out of court, in part through the promise
that it would use race-conscious policies to remedy the problem. Situations such as this, as well as the general pattern toward housing resegregation, and the fact that court precedent "has recognized that de jure
discrimination can be present even in the absence of racially explicit laws" (19, citing Yick Wo v. Hopkins
, 118 U.S. 356, 373-74 (1886)), make "the distinction between de jure
segregation (caused by school systems) and de facto
segregation (caused, e.g., by housing patterns or generalized societal discrimination) is meaningless in the present context...." (5). Indeed, there is a strange incentive under the jurisprudence announced for a district to admit its schools were de jure
segregated so as to be able to access the "remedial" plans it wishes to use but are only available to the (nebulously defined) formerly de jure
Next is a citation Justice Breyer gives to Swann v. Charlotte-Mecklenburg Board of Education
, 402 U.S. 1, 16 (1971). The Chief Justice spent a page and a half explaining why this quote was "dicta", but, oddly to my mind, did not at any point tell us what the quote or argument was. Well, here it is:
"School authorities are traditionally charged with broad power to formulate and implement educational policy and 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 Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities." (quoted at 3, 22)
This, of course, stands in harsh contrast to nearly every page of Roberts' substantive analysis--where he flatly condemns any effort at "racial balancing" and derides the notion that setting that balance in the proportion of school demographics is in any way legitimate.
Breyer actually provides this full block quote twice, to emphasize how serious he takes it. And a serious point it is, so much so that he spends eight full pages developing an argument off of it. To this, the Chief Justice has no other response than, "well, it's dicta." I venture no opinion as to who is right as to the relative significance of the Swann
passage. But Breyer is unquestionably right when he writes:
[T]he plurality....cannot adequately justify its retreat simply be affixing the label 'dicta' to reasoning with which it disagrees. Rather, it must explain to the courts and to the Nation why it would abandon guidance set forth many years before, guidance that countless others have built upon over time, and which the law has continuously embodied. (30-31)
As I noted after reading Roberts' opinion, the conflation of what a district must
do to desegregate, versus what it can
do, is a huge flaw in his opinion, and it's one that Breyer seized upon to great effect. Roberts' refusal to even engage the analysis in Swann
is telling, both of his lack of a good answer and his lack of respect for the serious legal issues in play here.
Breyer also takes a brief and oblique swipe at Thomas, the Originalist Warrior, by noting that (to the extent it speaks to the issue at all), it would be difficult to argue that the framers of the 14th Amendment would have understood it to bar the type of policies enacted by the two cities:
There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race conscious criteria to further that purpose, namely to bring the races together. See generally R. Sears, A Utopian Experiment in Kentucky: Integration and Social Equality at Berea, 1866–-1904 (1996) (describing federal funding, through the Freedman's Bureau, of race-conscious school integration programs). See also R. Fischer, The Segregation Struggle in Louisiana 1862-–77, p. 51 (1974) (describing the use of race-conscious remedies); Harlan, Desegregation in New Orleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962) (same); W. Vaughn, Schools for All: The Blacks and Public Education in the South, 1865-–1877, pp. 111-–116 (1974) (same).
I'll revise this after reading Thomas' concurrence, but my understanding is that originalist analysis is scant, if present at all, in his opinion.
Breyer and Thomas clash again on pages 37-45, on the subject of what the social science research tells us about how integration affects student performance. Breyer notes that "even the author of JUSTICE THOMAS' preferred studies has found some
evidence linking integrated learning environments to increased academic achievement," but goes on to argue that there is certainly a sufficient grounding of social science evidence on the side of integration so as to permit the district to rely on it (45). It certainly is a sharp turn from Gonzalez v. Carhart
, where the Court allowed Congress to take a position at odds with nearly all the scientific research on the subject, to this case, where the Court refused to allow the districts to operate within a paradigm supported
by the overwhelming consensus of the scientific community.
Yet another not-so-veiled swipe at the conservative members of the court shows up at page 62, where Breyer writes an impassioned plea to let democratic legislatures decide questions, rather than having the courts step in.
I use the words "may need" here deliberately. The plurality, or at least those who follow JUSTICE THOMAS' "color-blind" approach, see ante, at 26–27 (THOMAS, J., concurring); Grutter, 539 U. S., at 353–-354 (THOMAS, J., concurring in part and dissenting in part), may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objectives. See ante, at 40–-41 (plurality opinion); see also ante, at 26 (THOMAS, J., concurring). By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation's children and how best to administer America's schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality's slogan, whether the best "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Ante, at 40–-41. See also Parents Involved VII, 426 F. 3d, at 1222 (Bea, J., dissenting) ("The way to end racial discrimination is to stop discriminating by race"). That is why the Equal Protection Clause outlaws invidious discrimination, but does not similarly forbid all use of race-conscious criteria.
Such language is obviously ironic, but it does reveal the hypocrisy of many members of the majority, who would be first the right such words on nearly any other issue that came before the court where a liberal majority was striking down a policy they support.
Finally, Justice Breyer does a service when he notes that "Choice
, therefore, is the 'predominant factor' in these plans. Race
is not." To wit:
In fact, the defining feature of both plans is greater emphasis upon student choice. In Seattle, for example, in more than 80% of all cases, that choice alone determines which high schools Seattle's ninth graders will attend. After ninth grade, students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria). Choice, therefore, is the "predominant factor" in these plans. Race is not. See Grutter, supra, at 393 (KENNEDY, J., dissenting) (allowing consideration of race only if it does "not become a predominant factor").
Indeed, the race-conscious ranges at issue in these cases often have no effect, either because the particular school is not oversubscribed in the year in question, or because the racial makeup of the school falls within the broad range, or because the student is a transfer applicant or has a sibling at the school. (46)
The majority, oddly enough, tried to paint this as a point against the plan, arguing that it showed that it showed race-classifications were not necessary if they were used so sparingly, only to sheepishly admit that "we do not suggest that greater
use of race would be preferable," (plurality opinion, 27). Justice Breyer clearly has the better of this argument, noting that all this shows is that the majority's apocalyptic predictions of infinite and unlimited race-conscious assignments was unlikely to be borne out.
Like Justice Stevens, Justice Breyer's dissent closes with bitter force and a firm look at what Brown
, segregation, and Jim Crow truly represented.
And what of the long history and moral vision that the Fourteenth Amendment itself embodies? The plurality cites in support those who argued in Brown against segregation, and JUSTICE THOMAS likens the approach that I have taken to that of segregation's defenders. See ante, at 39-–41 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville's integration polices); ante, at 28-–32 (THOMAS, J., concurring). But segregation policies did not simply tell schoolchildren "where they could and could not go to school based on the color of their skin," ante, at 40 (plurality opinion); they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history, see ante, at 39 (plurality opinion), is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950's to Louisville and Seattle in the modern day--to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). This is not to deny that there is a cost in applying "a state-mandated racial label." Ante, at 17 (KENNEDY, J., concurring in part and concurring in judgment). But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation.
Finally, what of the hope and promise of Brown? For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality--not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.
The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.
I must dissent. (66-68)
I'll have to read Thomas' opinion after dinner to resolve the clash between him and Breyer. But the more important part about his conclusion comes afterwards. The soul of Brown
, and the battle for segregation, cannot be won as a "a matter of fine words on paper, but as a matter of everyday life...not simply as a matter of legal principle but in terms of how we actually live." Racism will not be overcome, to quote Kimberle Crenshaw, "by proclamation alone." Roberts' opinion was heavy on rhetoric and short on solution, empathy, or concern. And for that reason, I hope that Breyer's dissent eventually takes its place as the controlling law of the land.