From Louisville to Liddell: Schools, Rhetorical Neutrality, and the Post-Racial Equal Protection Clause

29 Pages Posted: 26 Jul 2013  

Cedric Merlin Powell

University of Louisville - Louis D. Brandeis School of Law

Date Written: April 25, 2012

Abstract

The neutral allure of school choice, neighborhood schools, and other purported "remedies" for poorly performing schools have displaced the substantive pursuit of fully integrated schools. Indeed, the constitutional mandate of Brown v. Board of Education has been cast aside in favor of a formalistic conception of equality based on an individual right to attend neighborhood schools without reference to race. Under this post-racial interpretation of the Fourteenth Amendment, Jim Crow racial subjugation is no different than positive, race-conscious remedial efforts to integrate and preserve diversity in public schools. Voluntary choice means that some discrimination may exist "naturally" if it cannot be directly attributed to state action. Tracing school desegregation cases in Louisville and St. Louis, this Article critiques the Roberts Court's post-racial constitutionalism in Parents Involved in Community Schools v. Seattle School District No. 1. This case holds the key to the seminal doctrinal shift from the Rehnquist Court's colorblind constitutionalism to the Roberts Court's post-racial constitutionalism.

Keywords: Fourteenth Amendment, school desegregation, colorblind constitutionalism, post-racial constitutionalism, affirmative action

Suggested Citation

Powell, Cedric Merlin, From Louisville to Liddell: Schools, Rhetorical Neutrality, and the Post-Racial Equal Protection Clause (April 25, 2012). Washington University Journal of Law and Policy, Vol. 40, 2012; University of Louisville School of Law Legal Studies Research Paper Series No. 2013-11. Available at SSRN: https://ssrn.com/abstract=2298490

Cedric Merlin Powell (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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