Abstract

In Parents Involved in Community Schools v. Seattle School District No. 1, a sharply divided Supreme Court struck down two race-conscious school assignment plans aimed at achieving greater racial integration of the public schools. Taking Parents Involved as a starting point, this Article looks ahead to the future of litigation over student assignment plans. By striking down the Seattle and Louisville plans, the decision may "require hundreds of school districts to rethink race-based policies that they use voluntarily to desegregate schools." At the very least, the 5-4 ruling almost certainly did not put an end to race-conscious integration plans or to the filing of challenges against them, for Justice Kennedy gave only qualified support to the ruling against these plans.

In this Article, I argue for a more flexible approach and offer grounds on which Justice Kennedy, and perhaps others, may be persuaded to reject the uncompromising Roberts position without careening all the way over to the Breyer view. The core proposition I advance is that the de jure/de facto distinction serves as the Court's tool for distinguishing between state and private action in the school integration context. As in other state action cases, the constitutional values at stake on either side of the de jure/de facto issue are, on one side, (a) the constitutional principles served by extending constitutional restraints into the arguably private sphere, and, on the other side, (b) the value of maintaining a private sphere free of legal constraints on private behavior. This Article argues that none of the Justices in Parents Involved adequately addressed the task of ranking and accommodating these competing constitutional values. Looking ahead, in future student assignment cases, it further contends that these values would be better served by a less categorical approach. The Court ought to steer a middle course between the positions taken by the plurality and Justice Breyer. This Article identifies a number of factors, ignored by all the opinions in Parents Involved, that should guide the Court in constructing such a doctrine in this area. I suggest, for example, that a distinction could have been drawn between the Louisville case, in which there had been an earlier finding of de jure segregation, and the Seattle case, in which there had never been such a finding. Though the court order mandating integration had since been lifted in Louisville, the history provides strong support for approving the current voluntary race-conscious plan. I also defend Justice Kennedy's distinction between race-conscious programs that target specific individuals and those that address school siting, attendance zones, and other such measures.

More specifically, Part I discusses the historical and analytical foundations of the de jure/de facto distinction. The distinction serves two aims: to enforce the Court's substantive equal protection principle that only purposive discrimination violates equal protection, and to separate cases where there is sufficient state action to warrant a finding of constitutional illegality from those where there is not. Part II examines the Justices' treatment of the de jure/de facto distinction in the various Parents Involved opinions. For all the bitter disagreements among them, the Justices seem to share a common faulty premise. All ignore the roots of the distinction in the flexible, context-specific state action doctrine, treating it instead as a kind of switch that is either turned on or off. Starting from the premise that the de jure/de facto distinction operates, in part, as a means of implementing the state action requirement of the Fourteenth Amendment, Part III raises objections to both the majority's bright-line de jure/de facto distinction and the dissent's refusal to draw any distinction at all. My aim is to show that there are grounds for Justice Kennedy, and perhaps other Justices as well, to take a less rigid approach in future cases. Part IV proposes such a middle course, arguing that a range of policy considerations should be brought to bear on the issue of whether the segregation in a given school district should be characterized as de jure or de facto. Accordingly, Justice Breyer is right to reject the plurality's crude version of the de jure/de facto distinction, but he goes too far in arguing that the distinction is "meaningless." There are good reasons to distinguish between state and private action, even in the school segregation context, and some of these may support at least part of the outcome in Parents Involved, if not the plurality's reasoning.

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