Let Freedom Ring: Making Grutter Matter in School Desegregation Cases
33 Pages Posted: 23 Apr 2009 Last revised: 20 Aug 2010
When the United States Supreme Court granted certiorari in 2006 to hear challenges to two voluntary desegregation plans in Parents Involved in Community Schools v. Seattle School District No. 1, civil rights activists watched with a mix of anticipation and trepidation. Some hoped that the litigation would offer a way to expand race-conscious policies in elementary and secondary education. Others feared that the cases would serve as the occasion to overrule Grutter v. Bollinger, a 2003 decision that upheld the constitutionality of affirmative action in admissions at the University of Michigan’s law school. To reach this result, Grutter relied on a diversity rationale rooted in the First Amendment and a tradition of academic freedom.
The question presented for review in Parents Involved was whether Grutter could be used to uphold voluntary plans that relied on race-conscious student assignments to achieve desegregation. Despite every indication that the voluntary desegregation cases would be a referendum on Grutter, none of the Justices addressed the diversity rationale in real depth. So, a case that began as a referendum on the Michigan case generally failed to address its implications outside of higher education. To a significant degree, the Justices treated diversity and desegregation as a distinction without a difference. Conflating these rationales imposed significant costs in the voluntary desegregation cases.
Here, I explore how the two rationales came to be conflated and why they are in fact quite distinct. I show how the opinions in Parents Involved might have looked different had the Justices carefully distinguished between diversity and desegregation. Building on Amy Gutmann’s work on Democratic Education, I argue that the Court should have attended to norms of both non-repression and non-discrimination in evaluating the propriety of the voluntary plans. If it had done so, diversity would not have wrongly operated as a constraint on racial balancing and instead would have established constraints on racial imbalance.
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