Connecting the Dots: Grutter, School Desegregation, and Federalism
Parker, Wendy, William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. GRUTTER AND DEFERENCE II. SCHOOL DESEGREGATION AND LOCAL CONTROL A. Brown II B. Title VI C. Milliken I, Milliken II, and Jenkins II D. Unitary Status E. Summary and Implications of Local Control III. DEFERENCE AND LOCAL CONTROL IV. FEDERALISM LESSONS A. Local Control and Federalism B. Desegregaation's Lessons for Affirmative Action 1. Flexibility 2. Varying Rights 3. A Better Way? CONCLUSION
Dissenting in the University of Michigan Law School affirmative action case, Grutter v. Bollinger, (1) Chief Justice Rehnquist twice described the approach of the majority as "unprecedented," (2) while Justice Kennedy declared it "antithetical to strict scrutiny." (3) Justice Thomas followed suit, also labeling the Court's analysis "antithetical to strict scrutiny" and twice calling it "unprecedented." (4) But the idea judged as dangerous and different--the idea of affording school administrators a degree of "deference" in judging their race-conscious activity (5)--is surprisingly as old as Brown v. Board of Education II. (6)
The 1955 Brown II case is well-known for requiring schools to desegregate only "with all deliberate speed," rather than immediately. (7) Most examining Brown II and its aftermath have debated the utility and justification for the judiciary's allowance of remedial delay. (8) Another important concept, however, emerges from Brown II, one almost completely overshadowed by the debate over timing. This is the idea of promoting "local control" in school desegregation, and concerns the role afforded to the defendants, by the judiciary, in ending de jure segregation. That aspect of Brown II makes Grutter's analysis less novel than some members of the Court have characterized it--and reveals that federalism and judicial competency partially justify Grutter's idea of deference.
This Article proceeds in four parts. Part I analyzes Grutter's approach of deferring to education officials defending their affirmative action policies. In upholding the constitutionality of the University of Michigan Law School's race-conscious admissions program, the Court finally laid to rest, at least temporarily, the idea that strict scrutiny is always fatal in fact. (9) The question now is whether Grutter's strict scrutiny is true strict scrutiny because the majority was highly deferential to the defendants. That is, in holding that diversity could be a compelling governmental interest, the majority took the school officials at their word when the school officials said they needed racial diversity for educational reasons and, in holding that the program was narrowly tailored, the majority gave the defendants the benefit of the doubt in the operation of the racial preferences. (10) As a result, educators can classify students according to their race in admissions, and educators are given some degree of deference in making and implementing that decision, albeit within critical limitations. (11) The dissenting Justices labeled the majority's approach not only as novel, but wrong. (12)
Part II turns to school desegregation to consider whether the role of deference in Grutter is new. The comparison of affirmative action to school desegregation might strike some as odd. Most scholars considering both have limited their discussion to whether affirmative action is consistent or inconsistent with the Brown v. Board of Education I prohibition of assigning students according to their race (i.e., whether Brown I reflects an anticlassification or antisubordination principle). (13) There is more to be said, however, because affirmative action and school desegregation cases are fundamentally quite similar. Both are Equal Protection Clause challenges to the racial activities of public schools that can result in federal court participation in local and state educational policy. (14)
With these similarities in mind, Part II explores the concept of "local control" in school desegregation as a potential precursor to Grutter's use of deference. …