Equal Protection Bars Racial Favoritism

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Forum: Debating Antonin Scalia’s record on race and education



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FALL 2017 / VOL. 17, NO. 4

In his 30 years on the Supreme Court, Justice Antonin Scalia wrote surprisingly few opinions in education cases, and even when he did, he seldom mentioned education. Instead, he focused on issues such as standing, techniques of statutory interpretation, the meaning of the First Amendment, and the importance of judicial restraint. Scalia believed his job in education cases was to read and apply the text of the law, and not allow his personal views on education to come in through the backdoor via free-ranging interpretations of vague statutory and constitutional provisions.

This set him apart from his more-liberal colleagues, who viewed Brown v. Board of Education (1954) not as a prohibition on the use of racial classifications in education, but rather as a mandate for judges to do whatever they could to promote “equal educational opportunity.” Judges who embrace this understanding of Brown and equal protection feel compelled to listen to the “experts” on educational inequality and to use their judicial authority to remedy injustices. Scalia, in contrast, favored a colorblind interpretation of the equal protection clause, that, in his words, “proscribes government discrimination on the basis of race, and state-provided education is no exception.”

Political Jurisprudence?

In his companion essay for this forum, James Ryan maintains that Scalia’s defense of judicial deference is fraudulent. There are many who share this view. Behind Scalia’s “originalism” and “textualism,” they claim, lies a conservative political point of view. In two key respects these critics are right. Scalia’s interpretive method is political in that it rests on an understanding of the proper operation of the political institutions of a liberal democracy. And it is conservative in the sense that he believed our public institutions (including our education system) are basically healthy, and should not be subjected to frequent rounds of reform by unelected judges and self-appointed experts. The key question here is the soundness of these political judgments.

It is fair to say that Scalia was relatively content with the way we have traditionally organized education in this country—or at least less critical of it than his more-liberal brethren. Until relatively recently, most education decisions and funding have been within the purview of local government. Local control of public schools combined with the availability of private schools promotes both choice and experimentation. The major flaw in this system—de jure racial segregation—has been ended. Critics rightfully note that this decentralization allows many forms of inequality to persist. But it is difficult to eliminate these inequalities without producing a stultifying uniformity and reducing voters’ control over education.

There are undoubtedly many ways our education system can be improved. Scalia saw such efforts not as the job of judges following the abstract theories of academic experts but of elected officials and the administrators appointed by them. Judges, he believed, should focus on establishing a few simple rules about what is legally permissible and what is forbidden. The rule of law, Scalia emphasized, is the law of rules. Judges should therefore look for rules that curtail the worst abuses rather than try to micromanage public schools.

Critics of Scalia’s originalism claim that this approach to constitutional interpretation exaggerates the extent to which we can understand the intentions of those who wrote the original Constitution or the Fourteenth Amendment. Scalia recognized that “it is often exceedingly difficult to plumb the original understanding of an ancient text” and to apply that understanding to contemporary issues. But for him that difficulty provided yet another argument for judicial restraint.

The primary purpose of originalism, Scalia argued, is to dissuade judges from reading their personal understandings of what is fair, good, and just into the vague phrases of the Constitution. When the Constitution is clear—for example, when it says that a state can deprive a person of “life” so long as it provides “due process,” or when it gives those accused of crimes the right to “confront” their accusers—judges need to follow those commands. Where the Constitution is ambiguous, “this Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.”

Scalia did not maintain, though, that the court should simply overturn decisions that have become embedded in our law and practices, however mistaken those decisions may have been. He usually adhered to the doctrine of stare decisis—respect for precedent. His approach looked not just to “text,” but to “tradition” as well. Regarding race and the equal protection clause, Scalia’s combination of text and tradition culminates in a simple rule: no governmental use of racial classifications except in extraordinary circumstances.

Brown, Green, and Colorblindness

For an originalist, Brown presents a serious problem. On the one hand, it has become a fundamental element of our legal and political culture. The authority of its central argument, that “separate is inherently unequal,” is now firmly established. On the other hand, it is far from clear that the original supporters of the Fourteenth Amendment believed that it prohibited school segregation. To advocates of a “living Constitution,” this lack of clarity is liberating: it frees them to do anything they think appropriate for promoting equal educational opportunity. For Scalia, in contrast, the challenge was to provide a solid constitutional foundation for Brown without empowering judges to wield it as a mandate to remake our schools.

Scalia claimed that the Fourteenth Amendment does provide support for school desegregation. In Rutan v. Republican Party (1990), he wrote that “the Fourteenth Amendment’s requirement of ‘equal protection of the laws,’ combined with the Thirteenth Amendment’s abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid.” Scalia focused on the general understanding of the terms “equal protection of the laws,” “due process of law,” and “privileges and immunities” in the late 1860s and thereafter. Although he could not prove there was broad support for prohibiting de jure segregation in 1868, he did show that there was a clear and vibrant tradition in case law that viewed the use of racial classifications by government as pernicious, particularly because such a practice is so susceptible to the tyranny of majority faction. This position was presented most forcefully in Justice John Marshall Harlan’s well-known dissent in Plessy v. Ferguson (1896). And Congress, through its voting patterns during the 1860s and 1870s, expressed a similar opposition to racial classifications, as the constitutional scholar Michael McConnell has demonstrated.

That “colorblind” interpretation of the Fourteenth Amendment was endorsed by the NAACP lawyers who brought the long string of cases culminating in Brown. “That the Constitution is color blind is our dedicated belief,” they wrote in their 1953 brief. And in his arguments before the court, chief counsel Thurgood Marshall maintained that the Fourteenth Amendment denies states the authority “to make any racial classification in any government field.”

This was also the understanding of the presidents who proposed the Civil Rights Act of 1964 and the members of Congress who voted for it. That seminal law explicitly states that “desegregation” means the assignment of students to schools “without regard to their race, color, religion, or national origin,” and shall not be interpreted to mean “the assignment of students to public schools in order to overcome racial imbalance.” As President John F. Kennedy put it a few months before his death, “I think it would be a mistake to begin to assign quotas on the basis of religion, or race, or color, or nationality. I think we’d get into a good deal of trouble.”

In an important sense, Ryan is right to claim that Scalia’s embrace of Harlan’s colorblind interpretation of the equal protection clause is “results-oriented.” Scalia was above all concerned with the political consequences of allowing public officials to use racial classifications. Indeed, it would be hard to avoid addressing a question of this magnitude without thinking about the long-term consequences of competing interpretations. Here, Scalia quotes from the constitutional scholar Alexander Bickel, who argued that a “racial quota derogates the human dignity and individuality of all to whom it is applied; it is invidious in principle as well as in practice.” A quota, Bickel charged, is a “divider of society” and a “creator of castes” that “can easily be turned against those it purports to help.” Given the dangers inherent in the use of racial classifications, Scalia maintained, we should take this tool out of the hands of public officials, even if they claim to use it for “benign” purposes.

In his opinion for the court in Parents Involved v. Seattle School District (2007), Chief Justice John Roberts illustrated Bickel’s point. Roberts noted that according to the rules the Seattle School Board had established to promote “diversity” in its schools, “a school that is 50 percent white and 50 percent Asian-American . . . would qualify as diverse,” but “a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white . . . under Seattle’s definition would be racially concentrated.” Especially at exam schools, boosting admissions for some groups comes at the expense of other groups—usually Asian Americans, who have also faced harsh discrimination over the course of American history. In Kansas City in the late 1980s and early ’90s, African American parents were justifiably irate when the federal court’s integration plan denied their children access to the magnet schools of their choice because so many seats had been set aside for white children—who did not show up in sufficient numbers to fill them. This shuffling of students on the basis of race reinforces racial thinking without providing countervailing benefits. Assertions of “benign” intent hardly ensure that public policies will not have perverse consequences.

Until the early 1970s, no one other than segregationists challenged the colorblind interpretation of the equal protection clause and Brown. This changed in a flurry of Supreme Court decisions on school desegregation, most importantly, Green v. New Kent County (1968) and Swann v. Charlotte-Mecklenburg Board of Education (1971). Justice William Brennan’s opinion for a unanimous court in Green set the stage for large-scale busing. It required school districts that had previously maintained a “dual” school system to take all steps necessary to convert to a “unitary” school system, one in which no schools are “racially identifiable,” because the enrollment of each school reflects the racial balance of the school district as a whole. District court judges took this to mean that desegregation orders must be revised on a regular basis to ensure racial balance. This practice continued for decades.

In two 1992 cases, Freeman v. Pitts and U.S. v. Fordice, Scalia addressed the question of how long such efforts at racial balancing must last. His principal purpose was to distinguish the extraordinary measures necessary for dismantling Jim Crow in the 1960s and 1970s from the “ordinary principles of our law, of our democratic heritage, and of our educational tradition.” He maintained that “plaintiffs alleging equal protection violations must prove intent and causation and not merely the existence of racial disparity,” and that “public schooling, even in the South, should be controlled by locally elected authorities acting in conjunction with parents, and that it is desirable to permit pupils to attend schools nearest their homes.” For Scalia, the proper response to a mistaken or outmoded precedent was not necessarily to overturn it but to stop expanding it, narrow it whenever possible, and thus “revert to the ordinary principles of our law.”

Ryan and other defenders of “benign” racial sorting, in contrast, insist that the use of remedies originally available only to judges charged with dismantling an entrenched racial caste system in the South should also be available to public officials presiding over school systems that have not violated the Fourteenth Amendment. The fullest presentation of this point of view is Justice Stephen Breyer’s impassioned dissent in Parents Involved. It is notable that Breyer never quoted from Brown, but only referred to its “hope and promise.” The main support for his position came from academic studies and Chief Justice Warren Burger’s opinion in Swann. Ryan, too, places much weight on the Swann opinion. That is a strange choice, given that it is among the Supreme Court’s most poorly constructed and internally contradictory opinions. Swann was the product of a complicated effort to extract a unanimous ruling from a deeply divided court.

In the end, the argument of Breyer and Ryan boils down to the claim that by using potentially dangerous racial classifications we can produce racially integrated schools that improve the educational opportunity of minority students. How do we know this? The experts tell us so, or, as Justice Clarence Thomas pointed out, not all the experts, just those Breyer chose to cite. Breyer “unquestioningly” relied upon “certain social science research to support propositions that are hotly disputed among social scientists.”

Can Brown be reconciled with a full-throated, doctrinaire understanding of originalism? Probably not. For that reason, no one endorsing that form of originalism has sat on the Supreme Court since 1954, and none are likely to be appointed in the future. But Antonin Scalia considered himself a “faint-hearted originalist” who saw Brown as part of a long and noble tradition that had been explicitly endorsed by Congress and the president in 1964 and that had since become deeply embedded in our political culture. At its heart lies a simple rule—no use of racial classifications except to remedy specific constitutional violations—that does as much to constrain as to empower judges. This rule might not lead us to the best possible education outcomes, but it prevents the worst type of abuses. Having unwisely expanded exceptions to the colorblind rule, Scalia argued, the court should now return to the original understanding of Brown.

This essay is abridged from a chapter in the forthcoming volume Scalia’s Constitution: Essays on Law and Education, edited by Paul E. Peterson and Michael W. McConnell, Palgrave Macmillan, 2018.

This is part of a forum on Antonin Scalia’s record on race and education. For an alternate take, see “Choosing Judicial Activism over Originalism” by James E. Ryan.




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