Academic journal article Harvard Journal of African American Public Policy

Finding Plan B: Critical Remedy Construction for School Districts Operating under Education Equity Consent Decrees Post Seattle and Louisville

Academic journal article Harvard Journal of African American Public Policy

Finding Plan B: Critical Remedy Construction for School Districts Operating under Education Equity Consent Decrees Post Seattle and Louisville

Article excerpt

BACKGROUND ON THE SEATTLE AND LOUISVILLE CASES

The Seattle and Louisville cases, specifically Parents Involved in Community Schools v. Seattle School District No.11 and Meredith v. Jefferson County Board of Education, (2) were heard jointly before the U.S. Supreme Court in December 2006, and the Court's decision was issued in June 2007. The focus of both cases is the constitutionality of the integration plans of the school districts involved. In the Seattle case, local residents in the district voluntarily entered into an integration program to ensure that Seattle's high schools reflected the demographics of the city itself. Essentially, the school district implemented a tiebreaker system for those schools that had more applicants than slots available. Race was considered as one of the factors. Parents Involved in Community Schools (PICS) argued that the use of race unfairly denied some students the right to be able to attend their neighborhood school. In the case in Jefferson County, which is in Louisville, Kentucky, the majority White school district utilized a mandate that no single school could be more than 50 percent or less than 15 percent Black. White parent, Crystal Meredith, sued the school district for racial discrimination when her son was unable to attend the closest elementary school. Both cases called into question previous court decisions, including the 1954 Brown, (3) specifically as it relates to whether race-conscious policies are acceptable for purposes of desegregation, as well as Bakke, Grutter, and Gratz, (4) with relation to if such policies are acceptable for purposes of affirmative action. They also raised the issue of whether the Fourteenth Amendment was being violated by these district policies. (5)

These two cases in Seattle and Louisville represent the latest in a trend of increased scrutiny by the courts with regard to race-conscious policies in recent years. Decisions in Gratz and Grutter signaled that the debate was far from over and, in fact, would come under increased pressure. Indeed, the Supreme Court's decision in Seattle and Louisville has helped to verbalize, in some senses, the notion that race-conscious policies must have some sort of shelf life and are, in fact, in stark contravention with the ideals stipulated in the U.S. Constitution. This notion of the shelf life of race-conscious policies countered by a marked resistance to a whole-scale overhaul of all affirmative action and race-conscious programs illuminates the tension between the goals of such programs and the necessity of remaining within the purview of the Constitution. The term "goals" insinuates that certain ends are desired by parties filing suit to preserve such policies and, moreover, that such goals are constructed taking into account the effects of de facto and de jure segregation.

Race-conscious policies have proven contentious subjects. In simplistic legal terms, the notion of compensation indicates that the wronged party is restored to the position in which the party would have been had the wrong not occurred. Translated into the framework of education, those supporting the use of race-conscious policies argue that such policies are necessary to remedy the aftereffect (and current effects) of past segregation and discrimination of (primarily) people of color. As such, the measures proposed seek to serve as "healing" factors for wrongs committed by de jure and de facto racism and discrimination. However, the circumstances under which such policies are constitutional are not so clear-cut. Indeed, previous case law confirms that remedying the effects of past intentional discrimination is in fact a compelling interest under the strict scrutiny test. (6) But the strict scrutiny test does not encompass effects that do not directly stem from past de jure segregation or attempts to achieve racial balance (insomuch as the racial imbalance is not directly due to de jure segregation).

Given this conception of what such policies seek to achieve, the goal is not to unfairly advantage any particular group or to practice reverse discrimination in which one individual or group's benefit comes at the expense of another's; instead the goal should be an attempt to remedy an uneven playing field so that all parties involved (both those who have been wronged and those who have been traditionally advantaged by racism) have access to the same opportunities. …

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