Schools, Rhetorical Neutrality, and the Failure of the Colorblind Equal Protection Clause
Rutgers Race & the Law Review, Vol. 10, p. 362, 2008
80 Pages Posted: 26 Feb 2010
Date Written: July 4, 2009
The inevitability of the Parents Involved in Community Schools v. Seattle School District No. 1 decision can be traced to three key doctrinal developments: (i) starting in the late 1970s and culminating in the 1990s, the Court began its long retreat from the susbstantive mandate of Brown v. Board of Education; (ii) the Court became increasingly skeptical of race-conscious remedial approaches and Justice O'Connor emerged as the doctrinal architect of its modified colorblind constitutionalism; and (iii) diversity, as a normative constitutional principle, became the centerpiece of the Court's race jurisprudence in post-secondary education. Diversity is inherently forward-looking and does not focus exclusively on race in the pursuit of equality. Taken together, these doctrinal developments lead directly to Parents Involved because they form the foundation for Chief Justice Roberts' literal colorblind constitutionalism. Although Chief Justice Roberts' plurality opinion did not garner the support of Justice Kennedy, who believed that race could be used in very limited and clearly defined circumstances, it nevertheless undercut the will of political communities committed to integration in the schools.
Keywords: School Desegregation, Race, Fourteenth Amendment, Colorblind Constitutionalism, Affirmative Action, Critical Race Theory, First Amendment
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