Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation after Parents Involved in Community Schools
42 Harvard Civil Rights-Civil Liberties Law Review 491 (2008)
24 Civil Rights Litigation and Attorney Fees Annual Handbook (Steven Saltzman & Barbara Wolvovitz, eds. West 2008)
48 Pages Posted: 29 Aug 2013
Date Written: May 21, 2008
This article examines the perhaps unintended consequences of changing legal doctrine. Most commentary on the U.S. Supreme Court Parents Involved in Community Schools (“PICS”) decision explores PICS’ impact upon voluntary race-based policies to remedy unintentional de facto racial segregation. In contrast, this analysis explores PICS’ impact upon mandatory race-based policies to remedy government-sponsored de jure racial segregation.
After PICS, the Fourteenth Amendment’s essence and character can turn on a finding of unitary status, a purely factual and somewhat subjective determination reviewable only for clear error. Under the Equal Protection Clause, a school district found to operate a de jure segregated school system may be forced to use race-based policies to undo the effects of such segregation. The instant, however, that a district judge signs the court order granting that school district unitary status, the Equal Protection Clause then forbids the school district from using the identical race-based policies to address the effects of de facto segregation. PICS thus has injected into the Equal Protection Clause’s schizophrenic identity a never-before-seen wrinkle called a pivot point.
The pivot point arises when school systems constitutionally required to use race-based policies to remedy de jure segregation become constitutionally prohibited from using the same race-based policies to address de facto segregation voluntarily. After exploring PICS’ effect on de jure school systems’ legal obligations, we explore the ramifications of a constitutional standard that abruptly transforms legal obligations on the basis of a subjective factual determination. This pivot point may induce bizarre effects in familiar legal processes, with unpredictable consequences.
In its zeal to alter Brown v. Board of Education’s legacy, the PICS majority overlooked the structural impact of its decision on de jure systems governed by a very different vision of the Equal Protection Clause. The resulting pivot point is a testament to the dangers of parsing individual rights too finely at the expense of maintaining stability in legal structure and process.
Keywords: Parents Involved in Community Schools v. Seattle School District No. 1, PICS, de facto, de jure, segregation, desegregation, Brown v. Board of Education, unitary status, voluntary racial integration, affirmative duty, strict scrutiny
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