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The Implications of the Equal Protection Clause for the Mandatory Integration of Public School Students

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The Implications of the Equal Protection Clause for the Mandatory Integration of Public School Students Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1997 The Implications of the Equal Protection Clause for the Mandatory Integration of Public School Students Kevin D. Brown Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the Education Law Commons Recommended Citation Brown, Kevin D., "The Implications of the Equal Protection Clause for the Mandatory Integration of Public School Students" (1997). Articles by Maurer Faculty. 510. https://www.repository.law.indiana.edu/facpub/510 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. The Implications of the Equal Protection Clause for the Mandatory Integration of Public School Students KEVIN BROWN Since 1954 America has been involved in efforts to desegregate her public schools. These efforts were primarily the result of United States Supreme Court opinions interpreting the Equal Protection Clause of the Fourteenth Amendment Cases in the 1950s, 1960s and 1970s, like Brown v. Board of Education,' Green v New Kent County School Board, and Swanm v Charlotte-Mecklenburg Board of Education,' placed a remedial obligation on public school districts that had engaged in intentional de jure segregation to racially balance their school popu- lations. At one point over 500 school districts across the country were under some form of federal court supervision Despite these efforts, recent reports suggest that desegregation of public schools peaked in the late 1980s. Public schools actually be- * Professor of Law, Indiana Universihy. B. Indiana UnhversO 1978, J.D. Yale Law SchooL 1982. The author would Ae to acknowledge and tha=k Professor John Scanlan. Dan Conkle, Susan Williams, and Craig Bradley for their helpful suggestions on this article. An earlier version of this article was presented at Dickinson Lmv School In November 1996; at a faculty colloquium at Northwestern Universit, in December, 1996; and at a falty colloquium at the National Law School of India in Bangalore, India In Januay 199Z The author would like to thank the participants at those various presentationsfor their helpful qomments and suggestions. The author would also like to thank Daletta Briggsfor her extraordinary research on this artcl. Fally, the author would like to dedicate this article to Shayla and Devin Browe and Nathan Hamilton. I w~rite this article in the hope that you will find a tolerant American society that is prepared to accept the diverslt you embody. 1. 347 U.S. 483 (1954). 2. 391 U.S. 430 (1968). 3. 402 US. 1 (1971). 4. See James S. Licbman, DesegregatingPolitics: All-Out School DesegregationErpalaned, 90 COLUM. L REV. 1463, 1465-66 (1990). 100D CONNECTICUT LAW REVIEW (V/ol. 29:999 came more segregated in the 1990s.5 As the public schools were be- coming more segregated, the Supreme Court's school desegregation jurisprudence entered into its final phase. With its 1990 opin- ion-Board of Education of Oklahoma City v. Dowell6-the Supreme Court began to define what a public school system must accomplish in order to satisfy the equal protection mandate of eradicating the vestiges of segregation. The Dowell opinion has been 'followed by two other school desegregation termination opinions, Freeman v Pitts7 and Mis- souri v Jenkins.' Pursuant to these cases, federal courts are increasing- ly withdrawing from their involvement in the desegregation of public schools and thereby closing an epic chapter in American legal history. If efforts to desegregate public schools are not destined to reach a dead end on the federal highway, it is clear that new roads must be forged through the terriiory of the laws of state and local governments. Only state and local action will be able to provide an alternative ave- nue. The recent opinion by the Supreme Court of Connecticut in Sheff v O'NeilP may spark the most far reaching state endeavor aimed at desegregating public schools. In Sheff, Connecticut's highest court placed an affirmative obligation on the state to dismantle racial and ethnic isolation in Hartford, Connecticut. Unlike school desegregation cases under the Equal Protection Clause, the affirmative obligation being imposed on the state in Sheff does not remedy any prior inten- tional segregative conduct by state officials. The obligation requires that Hartford maintain a racially and ethnically integrated student body. The Sheff opinion could provide the blueprint for the construction of a new superhighway for the desegregation of public schools. The decision, however, also raises the troubling question of whether the Supreme Court of the United States has already constructed a road block to state and local efforts to desegregate public schools. The 5. On December 13, 1993, the Harvard Project on School Desegregation released the results of a study which shows that 66 percent of all Black students and 74.3 percent of all Hispanio students attended predominantly minority schools in 1991-92. For African-Americans, these fig- ures represents the highest level of racial segregation since 1968. See William Cells, I, Study Finds Rising Concentration of Black and Hispanic Students, N.Y. TIMEs, Dec. 14, 1993, at Al. In 1986 only 63 percent of African-American students were attending predominately minority schools and in 1968 only 54 percent of Latino students were attending majority-minority schools. See William Eaton, Segregation CreepingBack in US. Schools, CHRONIcLE, Dec. 14, 1993, at Al. 6. 498 U.S. 237 (1991). 7. 503 U.S. 467 (1992). 8. 115 S. Ct. 2038 (1995). 9. 238 Conn. 1, 678 A.2d 1267 (1996). 19971 THE IMPICA TIONS OF THE EQUAL PROTECTION CLAUSE Supreme Court's current interpretation of the Equal Protection Clause is considerably different from that which accompanied the revival of the Equal Protection Clause in the 1950s after "decades of relative desue- tude."' ° No issue reflects this dramatic shift more than the recognition that current interpretations of the Equal Protection Clause may proscribe efforts by state and local governments to engage in mandatory school desegregation Outside of the public educational context, recent Su- preme Court opinions express a hostility to the use of racial and ethnic classifications by governmental units when used to advance even "be- nign" purposes. Supreme Court opinions like City of Richmond v. Croson,n Adarand Contractors, Inc v. Pena,"2 and Miller v. Johnson3 have subjected all governmental decision making using racial classifica- tions to strict scrutiny. This article will examine the question of whether the Equal Protec- tion Clause-as currently interpreted by the Supreme Court-proscribes the mandatory desegregation of public school students in Hartford, Connecticut. It will conclude by arguing that, despite initial appearanc- es, the recent Supreme Court cases do not preclude the State of Con- necticut from discharging its affirmative obligation to dismantle racial isolation. Section I reviews the Supreme Court of Connecticut's opinion in Sheff v O'Neill." Section R examines the United States Supreme Court's recent cases applying strict scrutiny to governmental decisions involving racial classifications. This section will focus particular atten- tion on Miller v Johnson.'s In Miller, the Court struck down a con- gressional redistricting plan passed by the Georgia General Assembly that was intended to produce a third majority-minority legislative dis- trict. The Court stated any time government uses racial classifications, 10. Regents of the University of California v. Bakke, 438 US. 265, 290 (1978). According to Powell's opinion, "The Court's initial view of the Fourteenth Amendment was that Its 'one pervading purpose' was the 'freedom of the slave mce,, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him.'" Slaughterhouse Cases, 16 Wall. 36, 71 (1873). But see City of Richmond v. Croson, 488 US. at 490-91 (O'Connor, J.) (claiming that the intention of the framers of the Fourteenth Amendment ,as to place clear limits on the State's use of race as a criterion for legislative action, and to have the federal courts enforce those limits). 11. 488 US. 469 (1989). 12. 115 S. Ct. 2097 (1995). 13. 115 S. Ct. 2475 (1995). 14. 238 Conn. 1, 678 A.2d 1267 (1996). 15. 115 S. Ct. 2475 (1995). 1002 CONNECTICUT L4WREVIEW [Vol. 29:999 strict scrutiny is triggered. In discharging the affirmative obligation to dismantle racial isolation of Hartford public school students, Connecti- cut will almost certainly have to rely on some form of mandatory school desegregation. Any form of mandatory desegregation-including school redistricting, busing, redrawing individual school boundary lines, or freedom of choice plans which impose limitations on the percentage of students from racial and ethnic groups that can attend a given school-requires the State of Connecticut to treat its students as mem- bers of racial and ethnic groups. This section will also examine Connecticut's attempt to use racial classifications in order to desegre- gate Hartford public schools in light of strict scrutiny jurisprudence articulated by prior United States Supreme Court cases. None of the prior Supreme Court cases provides an adequate justifi- cation for the use of racial classifications in order to desegregate public schools. If prior Supreme Court cases are not to stand as precedent for prohibiting mandatory desegregation, there must be something about public education that is unique in terms of governmental service. Sec- tion IR will first point to the conceptual structure that provides the hidden assumptions which animate the Supreme Court's recent equal .protection jurisprudence.
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