Amicus Curiae Brief — Parents Involved in Community Schools v. Seattle School Dist. No. 1

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7p & wy | FILED

Nos. 05-908 and chide OCI | 0 2006

: OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S. __

Supreme Court of the United States

PARENTS INVOLVED IN COMMUNITY SCHOOLS,

Petitioner,

Vv.

SEATTLE SCHOOL District No. 1, £7 AL.,

Respondents.

CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND

NEXT FRIEND OF JOSHUA RYAN MCDONALD.

Petitioner,

Vv.

JEFFERSON COUNTY BOARD OF EDUCATION, £7 AL..

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Ninth and Sixth Circuits

BRIEF OF THE CIVIL RIGHTS CLINIC AT

HOWARD UNIVERSITY SCHOOL OF LAW

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

KURT L. SCHMOKE ADERSON BELLEGARDE FRANCOIS *

Dean & Professor of Law Assistant Professor of Law &

Supervising Attorney

OKIANER C. DARK Ry 4

Civil Rights Clinic

Associate Dean &

Professor of Law DEREK W. BLACK

Assistant Professor of Law

HOWARD UNIVERSITY SCHOO!

OF LAW

2900 Van Ness Street NW

Washington. DC 20008

* Counsel of Record (202) 806-8065

——————— a aesaannensansannnnnennennnnennnnns

Wit SON-EPES PRINTING CO INC. - (202) 789-0096 - WASHINGTON, D C 20001

TABLE OF CONTENTS

THE COURT’S DECISION IN BROWN

CONTEMPLATED ACTUAL, EFFECTIVE

INTEGRATION OF PUBLIC SCHOOLS,

NOT MERELY THE ABROGATION OF DE

* ATES I Bes ccvcsscnicnsctcscsisitiinssennisiiies

A. Brown Culminated a Long, Strategic Cam-

paign for Integration and This Court Has

Long Endorsed That Goal............0.0..c0:cccc000.

B. The Necessity of Integration Can Be No

Greater Than in Education Because of This

Court’s Repeated Recognition of the

Correlation Between Access to Educa-

tional Opportunities and Effective Citizen-

1. Public Education and Its Relationship

to Citizenship Is of Paramount Impor-

tance to Both Our Society and Indi-

DO INNO is chictensinsteciietteancigdiccd ata

2. Racial Isolation in Education Under-

mines Brown’s Focus on Fully Open-

ing Citizenship and Society to All Our

NON G0'S MAMET E ....00.0.0sccenserssevcsnssees

a. Our National Interests Require

That Everyone Has Equal Access

to the Same, Singular Path of.

Citizenship Through Education...

(i)

II.

Ml.

IV.

TABLE OF CONTENTS—Continued

b. Our National Interest in Equal

Citizenship Cannot Be Obtained

in Racially Isolated or Segre-

gated Schools, Which Often

Threaten to Reduce Minority

Students to Second Class

I ap cenvedesctiabiinnrinincvionis

THE COURT’S LONGSTANDING DEFER-

ENCE TO SCHOOL DISTRICTS IN

REMEDYING THE HARMS OF RACIAL

ISOLATION IS NECESSARY TO ACHIEVE

THE UNFINISHED PROMISE OF BROWN ...

VOLUNTARY SCHOOL INTEGRATION

PLANS ARE VALUABLE AND NECES-

SARY TO ACHIEVING BROWN’S

PRROIEISES ...<sccsecovevesesocessesssosesesesnasesonoreonevesoneeses

A. Integration Plans Offer Educational, Occu-

pational and Societal Benefits ..................-..

B. A Substantial Number of School Districts

Have Adopted Voluntary Integration Plans ..

C. The United States Department of Educa-

tion Has Endorsed Voluntary School

Integration Plans.................0esssersrrsssesseees

D. Federal! Courts, Including this Court, Have

Recognized the Value of Voluntary Schoo!

Integration Plans ...........:sseseerereeeeeensersees

ALLOWING SCHOOL DISTRICTS TO USE

RACE-CONSCIOUS MEASURES IS THE

LAST BEST CHANCE OF ACHIEVING

BROWN’'S PROMISE ...............0.-ccceesersessreesseees

Page

iil

TABLE OF CONTENTS—Continued

Page

A. Narrowly Tailored Race-Consciousness Is

an Irreplaceable Tool in Voluntary School

MRS INIOR FURR ..00xsosevevsecapeesecesesnesesvesensetse 27

B. Upholding Race-Conscious Measures in

Voluntary Integration Plans Would Keep »

Faith with Brown; Denying them Would

Break with Brown’s Promise of Full,

Equal, and Integrated Educational Oppor-

NU GRID hasisrnicneiseatitoncunitthaitliscipiei tai 29

eT tntiinisnntntenbicsiteiapniilienacttitinalteiiiiautasinabbies 30

TABLE OF AUTHORITIES

CASES ‘Page

Bd. of Educ. of Oklahoma City Public Schs. v.

Dowell, 498 U.S. 237 (1991)........ccscccesssseeseseees 18

Briggs v. Elliott, 103 F.Supp. 920 (E.D. S.C.

OTD vncvscccicssiasccestiinieslontiviatdiademnenitainnsesseilaiaaiaieeints 14

Brown II v. Bd. of Educ., 349 U.S. 294 (1955)...... passim

Brown v. Bd. of Educ., 347 U.S. 438 (1954)......... passim

Clark v. Bd. of Educ. of Little Rock, 705 F.2d 265

Ci Se, TTI esvvccsstcinesnchtstiesndaieiniseteientiidvichornini 26

Comfort v. Lynn Sch. Cmty., 418 F.3d 1 (1* Cir.

BI nics eccovcsctevncinianiensnsniclepiiiaeieaiitamigasiestbeidaindinn 27

Davis v. Co. Sch. Bd., 103 F.Supp. 337 (E.D. Va.

PIE ics sarscissncsstseivoisniissetenieenhdiiesiiaiehiaesiiilhiesaiadacsinialy 14

Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th

Ce, Fi eicenceisnisicnehscitsnistcinchibiaihintiihiciniititiabilaaiiiiat 26

Freedman v. Pitts, 503 U.S. 467 (1992)... 15

Gebhart v. Belton, 91 A.2d 137 (Del. 1952)......... 14

Green v. New Kent Co., 391 U.S. 430 (1968) ....... 4,18

Grutter v. Bollinger, 539 U.S. 306 (2003)...........+. passim

Johnson v. Bd. of Educ of Chicago, 604 F.2d 504 ... 26

Kelley v. Altheimer, 378 F.2d 483 (8th Cir. 1967)..

McFarland v. Jefferson Co. Bd. of Educ., 330 F.

Supp. 2d 834 (W.D. Ky, 2005)...........::cccceceeeeees 28

McLaurin v. Oklahoma State Regents, 339 U.S.

GBF CRG inccessciceasicsaccsastiosscntivcintanscscnninenencssgnidn 7

Meyer v. Nebraska, 262 U.S. 390 (1923)... 1]

Milliken v. Bradley, 418 U.S. 717 (1974).........++. 8, 15, 18

Missouri ex rel. Gaines v. Canada, 305 U.S. 337

CGI xa cccniiocvsisenictinnsesocstestbinninctenaasocinsimsienynanss iF

Missouri v. Jenkins, 515 U.S. 70 (1995) ......ceceee 18, 20

Parents Ass'n of Andrew Jackson High Sch. v. _

Ambach, 738 F.2d 574 (2d Cir. 1984) ..........00 26

Parents Involved in Cmty. Schs. v. Seattle Sch.

Dist. No. 1, 426 F.3d 1162 (9th Cir. 2005)........ passim

Plessy v. Ferguson, 163 U.S. 537 (1899).........+.. 2, 14,17

TABLE OF AUTHORITIES—Continued

Page

Plyler v. Doe, 457 US 202 (1982) .......cccccccceeeeee 11, 12,14

Sipuel v. Board of Regents of University of

Oklahoma, 332 U.S. 631 (1948)......ccccccccecceeeees 7

Swann v. Charlotte Mecklenburg Bd. of Educ.,

RL ae Serene 4, 10, 19, 20

Sweatt v. Painter, 339 U.S. 629 (1950) 0.0.0... 7, 29, 30

United States v. Jefferson County Board of

_ Education, 372 F.2d 836 (Sth Cir. 1966)...........

United States v. Lowndes County Bd. of Educ.,

878 F.2d 1301 (1ith Cir. 1989) oo 15

Washington v. Seattle Sch. Dist. No.1, 458 U.S.

SIRE ERE Sele aE SSSRMESE SR ES ec ee 10, 20

Wisconsin v. Yoder, 406 U.S. 205 (1972)......000000.. 1]

LEGAL PERIODICALS AUTHORITIES

Derek Black, The Case For The New Compelling

Government Interest: Improving Educational

Outcomes, 80 N.C. L. Rev. 923 (2002)............. 21

Maureen T. Hallinan, Diversity Effects on

Student Outcomes: Social Science Evidence,

59 Ohio St. L.J. 733 (1998) .cccccccoccoscescesesescoseeees 22

Thurgood Marshall, Reflections on the

Bicentennial of the United States Constitution,

101 Harv. L. Rev. 1 (1987)................ccccccscceceeee 5,6

Michael Selmi, Race in the City: The Triumph of

Diversity and the Loss of Integration, 22 J.L.

EEA ETE Ie 19

BOOKS

Genna Rae McNeil, Groundwork 134 (1983)....... 6

George Gordon Noel Byron, Lord Byron, Childe

Harold’s Pilgrimage, Canto iv, stanza 108, in

The Complete Poetical Works of Lord Byron,

Volume 2 (Jerome J. McGann ed.) (1981)......... 30

TABLE OF AUTHORITIES—Continued

Nancy Kober, A Public Education Primer: Basic

(and Sometimes Surprising) Facts about the

U.S. Education System 7 (Center on Education

Petey BBBGD. .ccecccveccssevescncssevevccssassnvessscosssocsonseee

Rayford W. Logan, Howard University, The

First Hundred Years (1969) ..............ccsseseeeeeeees

SOCIAL SCIENCE AUTHORITIES

Carl Bankston, III’ & Stephen J. Caldas, The

American School Dilemma: Race and Scholas-

tic Performance, 38 Soc. Q. 423 (1997) .........:

Jomills Henry Braddock, I] & James M.

McPartland, The Social and Academic Conse-

quences of School Desegregation, in Equity

ated Clenle 3 CIGEBD cccasccesieseccsscorsovecscesensscssosoes

Jomills Henry Braddock, II & James McPartland,

Social-Psychological Processes That Perpetu-

ate Racial Segregation: The Relationship Be-

tween School and Employment Desegregation,

19 J. Black Stud. 267 (1989) ........:.ccc0e002 anal

Jomills Henry Braddock, II et al., A Long-Term

View of School Desegregation: Some Recent

Studies of Graduates as Adults, Phi Delta

~ Kappan 259 (Dec. 1984) ........ccceceseeeeeneenenerens

Marvin P. Dawkins & Jomills Henry Braddock,

Il, The Continuing Significance of Desegrega-

tion: School Racial Composition and African

American Inclusion in American Society, 63 J.

Negro Educ. 394 (1994) .......:cccceccecseseeeenenseenens

Looking to the Future: Voluntary K-12 School

Integration, A Manual for Parents, Educators,

and Advocates 9 (2005), available at

http://www.civilrightsproject.harvard.edu/reso

urces/manual/deseg_manual.php ..................00+

Page

Vii

TABLE OF AUTHORITIES—Continued

Mathtech, Inc., The Outcomes of Diversity in

Higher Education, in Mid-Year Report Pre-

pared for Office of Educational Research and

Improvement, VII-4 to VII-7 (1998)...

Heidi McGlothlin & Melanie Killen, Jntergroup

Attitudes of European American Children At-

tending Ethnically Homogeneous Schools, 77

Child Development 1375 (September/ October

TTI ceciernsciieitieannpiiieaaiitaaciadebiaa linia iti

Gary Orfield and Chungmei Lee, Racial Trans-

formation and the Changing Nature of Seg-

regation, The Civil Rights Project at Harvard

University 9 (Jan. 2006), available at http:

www.civilrightspoject.harvard.edu....................

Janet Ward Schofield, Review of Research on

School Desegregation's Impact on Elementary

and Secondary School Students, in Handbook

of Research on Multicultural Education 597

(James A. Banks ed., 1995) .0.........c.ccccccsceeeceseeee

Robert E. Slavin, Effects of Biracial Learning

Teams on Cross-Racial Friendships, 71 J.

Educ. Psychol. 381 (1979)..............ccccccccceseeeeeee

MISCELLANEOUS

Montclair Magnet System, Historical Perspec-

tive, available at http://www.montclair.k 12.nj.

us/district/magnet/history.cfm .............c.ccc0ce0e-e.

U.S. Dept. of Educ., Magnet Schools Assistance,

available at http://www.edu/gov/programs/

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STATEMENT OF INTEREST

Amici curiae are faculty members at Howard University

School of Law, supervising attorneys and student attorneys of

the Civil Rights Clinic at the Law School, and faculty

members at law schools throughout the country. While

Howard University is usually regarded as one of the his-

torically black colleges and universities, the truth is, both at

the university and law school level, Howard has always been

one of the most racially integrated higher education

institutions in the United States. In fact, at its founding in

1867, Howard University was designed to educate blacks and

whites in an integrated setting. Today, Howard has achieved

a racial and ethnic diversity in student body and faculty

consistent with its mission that the benefits of higher

education “should be made available to all persons, without

regard to distinctions of race, sex, creed, or nationality.”' It

is from that integrated perspective that we submit this brief in

support of the Respondent school boards in order to

respectfully urge this Honorable Court to continue the great

work of racial integration begun by Brown v. Board of

Education, 347 U.S. 483 (1954), and affirm the decisions of

the Sixth and Ninth Circuit Courts, finding that the school

boards’ narrowly tailored race-conscious transfer policies

serve the compelling state interest of diversity in primary and

secondary education.’

' Rayford W. Logan, Howard University, The First Hundred Years

1867-1967 i (1969).

* Amicus, Howard University School of Law, recognizes that some

individuals might find the arguments herein contradictory because

Howard is a predominantly black institution. However, amicus’ argu-

ments are consistent with its current and historical mission for several

reasons. First, institutions such as Howard came into existence not to

foster scgregation, but rather to remedy the lack of Opportunity that was

available to minorities elsewhere. Sccond, the development of successful

black institutions serve to combat the negative perceptions that are

Seventy-one years ago Charles Hamilton Houston, a former

law professor and Dean at Howard law school, conceived of a

legal strategy dedicated to the proposition that the social vio-

lence of racial segregation could never be reconciled with the

constitutional imperative of equality before the law. Between

1930 and 1954, Houston recruited, trained and nurtured a cadre

of Howard law students, professors and lawyers who, under

the leadership of the NAACP Legal Defense and Education

Fund, (LDF) systematically litigated the dismantling of the

constitutional, intellectual and moral foundations of the

pernicious separate but equal doctrine of Plessy v. Ferguson,

163 U.S. 537 (1896). Though Houston, the founder, did not

live to see the fulfillment of his strategy, in 1954 this Court, at

the urging of one of Houston’s original protégés, then LDF

Chief Counsel Thurgood Marshall, issued the decision in

Brown and set this country on a path to racial integration.

Now, the present companion cases have raised the question

whether the use of race by a school district as one factor to

voluntarily achieve an integrated student body violates the

Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution. We find ourselves at a critical

moment that will determine whether we grant public school

districts the irreplaceable tool they need to construct an

environment for children to associate with peers of all

backgrounds, or deny children the opportunity to internalize

at an early age what Judge Kozinski of the United States

Court of Appeals for the Ninth Circuit called the “live-and-

let-live spirit that is the essence of the American experience.”

Parents Involves In Community Schools v. Seattle School

District, No. 1,426 F.3d 1162, 1195 (9th Cir. 2005).

otherwise directed toward minoritics. Third, contrary to popular mis-

conception, Howard has always been open to and enrolled ‘students from

_ all races and ethnicities. Finally, as noted above, in comparison to most

historically white institutions, Howard has always been and today remains

wholly integrated.

But in a larger sense, though these companion cases do not

directly challenge the plain holding of Brown that separate is

inherently unequal, they do place before the Court the

question whether Brown will continue as a viable precedent,

and whether Brown’s fundamental goal of meaningful racial

integration and diversity in primary and secondary schools

will remain a valued public good. It is, therefore, fitting that,

as this Court once again takes up the unfinished work of

racial integration, it not just consider its own opinion in

Brown, bui that it also revisit the arguments and goals of

Brown’s founding attorneys, who fifty-two years ago first

made it possible for the Court to open the door of equal

educational facilities and opportunities for all students.

For amici curiae, the present companion cases come to

this: Voluntary school integration plans are consistent with

the vision of Brown’s founders, represent the natural

evolution and necessary continuation of this Court’s Brown

opinion, and stand as the last best chance of achieving

meaningful school integration. Petitioners’ very challenge to

these plans unmistakably demonstrates that Brown’s goals

and purposes have yet to be fulfilled. We are here today

asking that this Court renew its commitment to the great task

of racial integration by denying Petitioners’ claims, and

upholding the decisions of the Sixth and Ninth Circuit courts

of appeals.

‘SUMMARY OF ARGUMENT

Two years ago, this country celebrated the 50th anniver-

sary of one of the most important cases in the nation’s

jurisprudential and political history: Brown v. Board of Edu-

cation, 347 U.S. 483 (1954). Brown did nothing less than

recall the nation to its founding principle of constitutional

equality by forbidding states from segregating public edu-

cation on the basis of race. Although Brown’s holding spoke

most directly to the elimination of de jure racial segregation

in public school education, in the minds of both the founders

and this Court, its ambitions were greater: Brown promised

actual meaningful social integration.

By emphasizing the importance of education and the role it

plays in good citizenry, this Court’s decision in Brown con-

templated actual, effective integration of public schools, not

merely the removal of de jure segregation. Beginning with

Brown, the Court recognized that equal educational oppor-

tunities should be available for all children, no matter their

race, and that equal educational opportunities could only be

achieved by eliminating inferior, racially identifiable schools.

Subsequent to Brown, this Court consistently recognized the

goals of not just eliminating de jure segregation but promot-

ing meaningful school integration. See, e.g., Swann v. Char-

lotte Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Green v.

New Kent Co., 391 U.S. 430 (1968). In the Court’s own

words, integration “promotes ‘cross-racial understanding,’

helps to break down racial stereotypes, and ‘enables [stu-

dents] to better understand persons of different races.’ These

benefits are ‘important and laudable.”” Gru. fer v. Bollinger,

539 U.S. 306, 330 (2003).

And yet, in the years following Brown, integration plans

achieved limited and halting success, such that even more

than fifty years later it is difficult to claim with any serious-

ness that as a society we have achieved Brown’s promise of

meaningful public school integration. To the contrary, in

recent years, this country has experienced a dramatic trend

toward resegregation. Voluntary integration plans are the one

encouraging corrective to that trend, and the last best chance

to achieving Brown’s promise. But, without the conscious

use of race as one of multiple factors to achieve that goal,

public schools districts will find themselves, as did

Respondent, the Seattle Board of Education, falling back into

re-segregation. If, as this Court held in Grutter, 539 U.S. at

325, diversity in education is a compelling state interest, then

the voluntary use of race by local school boards as one of

multiple factors to achieve that interest is constitutionally

permissible.

Fifty-two years ago, this Court rejected segregation by

State action; today it must decide whether it will embrace

integration by state action.

I. THE COURT’S DECISION IN BROWN CON-

TEMPLATED ACTUAL, EFFECTIVE INTE-

GRATION OF PUBLIC SCHOOLS, NOT

MERELY THE ABROGATION OF DE JURE

SEGREGATION.

Brown was.a watershed in the long struggle to realize the

principles upon which this country was founded. It was the

fruit of a legal campaign undertaken by the Howard University

School of Law, its Dean, Charles Hamilton Houston, his most

famous student, Thurgood Marshall and the pioneering lawyers

of the NAACP Legal Defense Fund. The task they undertook ~

was a reshaping of American society as profound as the

reshaping accomplished by the Constitution itself. As the late

Justice Thurgood Marshall remarked on the Bicentennial of the

Constitution, “. . . the true miracle was not the birth of the

Constitution, but its life, a life nurtured through two turbulent

centuries of our own making.” Thurgood Marshall, Reflections

on the Bicentennial of the United States Constitution, 101

Harv. L. Rev. 1, 5 (1987). If our Court and profession have

anything of which to be proud, it is that Brown is one of the

great transformations of our nation’s Constitutional life, and is

“of our own making.”

One of the earliest steps in our legal racial transformation

was initiated by Charles Houston in 1937 when he filed a suit

to compel the University of Missouri to admit a black appli-

cant to its law school. Missouri ex rel. Gaines v. Canada,

305 U.S. 337 (1938). It was the beginning of a fight for

“identical quality and quantity of educational opportunity

[for] all citizens regardless of race, color or creed.” Charles

Hamilton Houston as quoted in Genna Rae McNeil, Ground-

work 134 (1983). The final objective, however, was not just

an “equalization” of the sort contemplated by Plessy:

“{E]quality of education is not enough. There can be no

true equality under a segregated system. No segregation

operates fairly on a minority group unless it is a

dominant minority. ... The American Negro is not a

dominant minority; therefore he must fight for complete

elimination of segregation as his ultimate goal.” __

Id. Hence, the founders’® seventeen year struggle to bring

Brown to fruition was not merely a struggle to prohibit Jim

Crow’s system of inequality. Their endeavor was to replace

it with something better.

The ultimate aspiration of Brown and subsequent school

desegregation litigation was for black and white children to

finally sit together, learn together, and grow up together in the

public schools. If it could achieve this end, these children

would build the foundation for a society in which black and

white Americans who, although born of different circum-

stance and subjected to different legal constructs, could

ultimately participate in citizenship, as well as employment,

housing and society, as equals. The Court’s decision in

Brown and subsequent cases courageously embraced this

aspiration and took a giant step toward bringing the “miracle”

of our Constitution to life. See Marshall, supra, at 5.

> This brief shall refer to Howard University School of Law, Charles

Hamilton Houston, Thurgood Marshall, NAACP Legal Defense Fund and

their clients collectively as “the Founders.” Amicus deems such a refer-

ence appropriate, as it was only through the concerted effort of these indi-

viduals that the issues in Brown and its progeny were brought before this

Court. Moreover, it was their efforts, analyses and perspectives that drove

and molded the Court's jurisprudence at every stage.

A. Brown Culminated a Long, Strategic Campaign

for Integration and This Court Has Long

Endorsed That Goal.

The Founders began their battle against segregation in

education with an attack on its presence in state university law

schools. In deciding for the petitioners, the Brown Court relied

on four of these foundational cases, Gaines, 305 U.S. 337

(holding that a state that provides legal education to whites

within its borders, must provide the same for blacks within its

borders); Sipuel v. Bd. of Regents of Univ. of Oklahoma, 332

U.S. 631 (1948) (holding that a state is required to provide a

legal education to black students if it does so for white

students); Sweatt v. Painter, 339 U.S. 629 (1950) (holding that

a state has not fulfilled its Equal Protection obligation to black

students by providing a separate law school); and McLaurin v.

Oklahoma State Regents, 339 U.S. 637 (1950) (holding that

black students must be treated equally once admitted). In the

context of graduate schools, the patent thesis was that separate

could never be equal because of the differential prestige and

any number of other intangible benefits that follow from

attending the “preferred” or “white” school. Consequently, the

Court in Sweatt held in favor of the plaintiffs, stressing the

importance of a school’s reputation and other “qualities which

are incapable of objective measurement but which make for

greatness in a law school.” 339 U.S. at 634. These qualities

have a significant effect on the educational opportunities and

position enjoyed by students.

Relying on and analogizing to Sweatt, the Court in Brown

extended its reasoning to primary and secondary schools

declaring that, “[s]uch considerations apply with added force

to children in grade and high schools.” Brown, 347 U.S. at

494. Thus, from the first day that a child enters public school

to the final day that they might depart with a law or medical

degree, the Court recognized that access to the intangible is

often the most determinative factor in shaping their oppor-

tunity to learn life’s most important lessons.

The appellants’ and amicus briefs in Brown and Thurgood

Marshall’s opinions after he ascended to the Court further

demonstrate that the final goal of comprehensive integration

was always paramount. Implicitly demanding integration, the

appellant’s brief declared,

[R]acial segregation injures infant appellants in denying

them the opportunity available to all other racial groups

to learn to live, work and cooperate with children repre-

sentative of approximately 90% of the population of the

society in which they live; to develop citizenship skills;

and to adjust themselves personally and socially in a

setting comprising a cross-section of the dominant popu-

lation.

Brief for Appellants, Brown, 347 U.S 483, 1952 WL 47265 at

9. Educators agreed saying, “We cannot give separate train-

ing to two segments of society and then expect that some

magic will merge the individuals from these segments into

equal citizens having equal opportunities.” Brief of the

American Federation of Teachers as Amicus Curiae, Brown,

347 U.S 483, 1952 WL 82043 at 8. Still appealing for the

realization of this goal twenty years after Brown, Marshall

warned, “[{uJnless our children begin to learn together, there is

little hope that our people will ever learn to live together.”

Milliken v. Bradley, 418 U.S. 717, 783 (1974) (Marshall, J.,

dissenting).

From the beginning, this Court endorsed integration, both

as a remedy to a constitutional violation and a societal im-

perative. To begin with, Brown recognized a distinction

between the constitutional violation perpetrated by discrimi-

natory laws, on the one hand, and the harms incident to

segregated schooling on the other. The analysis had two

distinct parts: first, de jure segregation in the public schools

deprives the minorities of the equal protection of the laws,

Brown, 347 U.S. at 495, and second, “[s]egregation of white

and colored children in public schools has a detrimental effect

upon the colored children.” Jd. at 494 (internal citation omit-

ted). Moreover, it is important to note that the Court also

recognized that segregation itself created an injury, regardless

of whether it occurred as a result of a constitutional violation,

but of course, the constitutional violation exacerbated that

injury. As the Court wrote, “[t]he impact is greater when it

has the sanction of law.” /d. at 494 (emphasis added). Thus,

although the.Court in Brown recognized that de jure segrega-

tion created a constitutional harm that must be remedied, it

also recognized that segregation, regardless of cause, could

and did harm blacks.

In Brown and its progeny, the Court was explicit in con-

cluding that the remedy to the injury must be more than the

mere abrogation of the discriminatory law, but requires actual

integration. Although the Court has consistently used phrases

such as creating a “unitary system,” eliminating “vestiges of

discrimination root and branch,” and eliminating “racially

identifiable” schools, at their heart these have been a require-

ment that the schools integrate and a recognition of the value

in such action. For instance, the facts upon which the Court

relied in finding against the school board in Green demon-

strate its endorsement of integration. Despite having made its

schools available to all students, the Court found against the

board because “[nJot a single white child has chosen to attend

[the black school] and . . . 85% of the Negro children in the

system still attend the all-Negro . . . school.” 391 U.S. at 442.

The duty to produce schools that were integrated in contrast

to this fell “squarely on the School Board” and was not a

“burden” to be placed on “children and their parents” /d. at

442-43. Thus, it was of no accord that the board had repealed

or eliminated its discriminatory laws. “{T]he fact that . . . the

Board opened the doors of the former ‘white’ school to Negro

children and of the ‘Negro’ school to white children merely

begins, not ends, our inquiry whether the Board has”

remedied its constitutional violation and harm. /d. at 437.

The school board’s duty was to make “meaningful and

immediate progress toward” integration. /d. at 437, 442-43.

In Swann, the Court likewise encouraged school boards to

pursue integration on their own, writing that “in order to pre-

pare students to live in a pluralistic society [school boards

might decide that] each school should have a prescribed ratio

of Negro to white students. . .” 402 U.S. at 16. In the same

school district that is before this Court today, this Court,

referring to its long struggle to achieve integration, formerly

declared,

When [the societal] environment is largely shaped by

members of different racial and cultural groups, minority

children can achieve their full measure of success only if

they learn to function in—and are fully accepted by—the

larger community. Attending an ethnically diverse school

may help accomplish this goal by preparing minority

children for citizenship in our pluralistic society while,

we may hope, teaching members of the racial majority to

live in harmony and mutual respect” with children of

minority heritage.

Washington v. Seattle Sch. Dist. No.1, 458 U.S. 457, 472-73

(1983) (internal citations omitted). In short, whether it is a

demand in regard to remedying a constitutional violation or

simply wisdom in regard to how schools should best respond

to the harms of segregation, this Court has repeatedly ‘en-

dorsed integration as a precious goal.

B. The Necessity of Integration Can Be No

Greater Than in Education Because of This

Court’s Repeated Recognition of the

Correlation Between Access to Educational

Opportunities and Effective Citizenship

1. Public Education and Its Relationship to

Citizenship Is of Paramount Importance to

Both Our Society and Individual Citizens.

In this Court’s earliest attempts to define the role of public

education in our country, it wrote that the “American people

have always regarded education and [the] acquisition of

knowledge as matters of supreme importance.” Meyer v.

Nebraska, 262 U.S. 390, 400 (1923). It holds this importance

because “education is necessary to prepare citizens to

participate effectively and intelligently in our open political

system if we are to preserve freedom and independence.”

Wisconsin v. Yoder, 406 U.S. 205, 221 (1972). In Plyler v.

Doe, the Court again recognized that the education we deliver

in our public schools lies at the very heart of national

interests, as our schools are “vital civic institution{s] for

the preservation of a democratic system of government.”

457 U.S. 202, 221 (1982) (citing Abington School District

v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J.,

concurring)).

Most important to the instant case, the Court in Brown, in

what may be its most famous lines, framed its decision and its

own duty to finally intervene in segregation based on the

importance of education to society and to the individual to

which equal education had been denied. Addressing the

societal interest, the Court wrote:

[E]ducation is perhaps the most important function of

state and local governments. Compulsory school atten-

dance laws and the great expenditures for education both

demonstrate our recognition of the importance of educa

tion to our democratic society. It is required in the

performance of our most basic public responsibilities . . .

It is the very foundation of good citizenship.

Brown, 347 U.S. at 493.

However, the Court likewise recognized the personal inter-

est of the individual in education and its relationship to

citizenship and later opportunities. Equal educational oppor-

tunities, of course, are required for the individual if he or she

is to have an cqual opportunity to take advantage of citizen-

ship. /d. Moreover, on a more basic level, education is the

“principal instrument in awakening the child to cultural val-

ues, in preparing him for later professional training, and in

helping him to adjust normally to his environment.” Jd. at

493-94. These ideas have carried forward in the Court’s

jurisprudence. As it later wrote, without education, individu-

als are not “prepare[d] . . . to be self-reliant and self-sufficient

participants in society.” Plyer, 457 U.S. at 222

2. Racial Isolation in Education Undermines

Brown’s Focus on Fully Opening

Citizenship and Society to All Our Nation’s

Members.

a. Our National Interests Require That

Everyone Has Equal Access to the

Same, Singular Path of Citizen-ship

Through Education.

Our national interests not only require that we educate our

citizens so that they might participate in and preserve our

democratic system, but in so far as individuals have a per-

sonal right in that education and the fruits of citizenship, so

too must their access to citizenship be equal. As the Foun-

ders, amicus, the Court, and history have shown us, equal

citizenship simply cannot be obtained when school systems

are racially isolated.

As the Appellants in Brown argued, “our public school

systems have grown and improved as an American institu-

tion. And in every community it is obvious that children of

all levels of culture, educability, and achievement must be

accounted for within the same system.” Reply Brief of

Appellants, Brown II, 349 U.S. 294 (1955), 1954 WL 45730

13. Our teachers, who through experience and expertise

know far better than we, reached the same conclusion. In

Brown, the American Federation of Teachers wrote “{w]e

cannot give separate training to two segments of society and

then expect that some magic will merge the individual from

these segments into equal citizens having equal opportuni-

ities.” Brief of American Federation of Teachers, Brown, 347

U.S. 483, 1952 WL 82043. This Court has likewise adopted

similar reasoning and wisdom in subsequent decisions. As

the Court recently wrote in Grutter, “[e]ffective participation

by members of all racial and ethnic groups in the civic life of

our Nation is essential if the dream of one Nation, indivisible,

is to be realized.” Grutter, 539 U.S. at 332. Thus, an edu-

cation system that provides differential access to civic life is

inimical to our national unity and progress.‘

* Although the facts in Plyler presented disparities of a different degree

because immigrant children were completely denied an education, the

principle behind the Court’s statements are analogous. There the Court

Stated that “education has a fundamental role in maintaining the fabric of

our society. We cannot ignore the significant social costs borne by our

Nation when select groups are denicd the means to absorb the values and

skills upon which our social order rests.” 457 U.S. at 221.

b. Our National Interest in Equal Citi-

zenship Cannot Be Obtained in

Racially Isolated or Segregated

Schools, Which Often Threaten to

Reduce Minority Students to Second

Class Citizenship.

When racial isolation and segregation unfortunately occur,

unequal access to citizenship and education almost necessar-

ily follow. The primary practical result and possibly the

greatest evil of racial segregation in the south was a system of

superior and inferior schools. The existence of such schools,

and their concomitant perpetuation of dual paths to citizen-

ship, was foremost in the Court’s motivation to prohibit seg-

regated schooling. The Court realized that meaningful and

equal citizenship could not be effectuated within tiered school

systems, where some schools are superior and some are

inferior. Such a system inevitably leads to two levels of

citizenship: first class and second class.

When Brown came before the Court, superior white schools

and inferior black schools were the dominant state of affairs.

Most notably, the facts of the companion cases that comprised

Brown demonstrated gross inequalitics between white and

black schools and the resulting serious effects on black

children. See Brown v. Bd. of Educ. of Topeka, 98 F. Supp.

797 (D.C. Kan. 1951); Briggs v. Elliott, 103 F. Supp. 920 (E.D.

S.C. 1952); Gebhart v. Belton, 91 A.2d 137 (Del. 1952); Davis

v. Co. Sch. Bd., 103 F.Supp. 337 (E.D. Va. 1952). Although

the Court’s decision did not rest on these facts, as it ultimately

held “separate” was inherently unequal, the facts of these cases

demonstrate a practical reality: so long as separation occurs,

our society will exercise a license to treat blacks unequally.

Sixty years of experience following Plessy proved that a

system of “separate but equal” will operate only in theory and

will produce no level of equality.

Because of this past, predominantly black schools are

perceived as inferior no matter how equal they might be in

other measurable aspects. Thus, even once school systems

had eliminated “whites only” or “blacks only” schools and

had equalized resources, the Court remained concerned with

whether a school was racially identifiable. See, e.g., Swann,

402 U.S. at 18-19. Among other things, the Court would

query whether the a school was perceived as a “black” or

“white” school, because so long as such a perception per-

sisted, whites would not attend a “black” school and the

schools were apt to become unequal if they were not already.

See, e.g., United States v. Lowndes County Bd. Of Educ., 878

F.2d 1301, 1306 (11th Cir. 1989) (assessing whether there

was sufficient perception of a school as “black” to cause

whites to not attend it). In addition, despite the Court’s

sensitivity and concern for these issues, the Court has

likewise seen “black” schools lead to “black” districts, from

which whites have fled for the same reasons. See, e.g.,

Freeman v. Pitts, 503 U.S. 467 (1992); Milliken, 418 U.S.

717. In short, the Court knew and history has shown that

racially isolated or identifiable schools, even when not de

jure, threaten equal educational opportunities for blacks and

the goals of Brown.

The Court and the founders, moreover, demonstrated that

the harm to blacks was not merely unequal facilities, instruc-

tion, and resources, but rather was an indelible harm that

operated to shrink blacks’ overall life opportunities, including

the basic rights to participate in society and citizenship

equally. Describing the overall restrictions that segregation

placed on blacks, the Founders stated, “[w]hat is achieved

educationally and culturally, we now know to be largely the

result of opportunity and environment.” 1954 WL 45730, 12-

13. Similarly, the Court in Brown, recounting previous

higher education decisions, found that even with all tangible

factors being cqual a racially isolated learning environment

restricts a black student’s “ability to study, to engage in

discussions and exchange views with other students, and, in

genera!, to learn his profession.” Brown, 347 U.S. at 493-494

(citing McLaurin, 339 U.S. at 641). The Court concluded that

elementary school minority school children were also disad-

vantaged in these respects, if not more so than college

students. Moreover, at this “pivotal” point in minority chil-

dren’s development, racial isolation spawns feelings of

“inferiority as to their status in the community” at large,

“affect{ing] their hearts and minds in a way unlikely ever to

be undone.” Jd. Even the Kansas District Court that found

that segregation was not legally objectionable could not deny

the manner in which racial isolation limits black students to

fundamentally different opportu” itics, finding:

[s]egregation of white and colored children in public

schools has a detrimental effect upon the colored chil-

dren. The impact is greater when it has the sanction of

the law; for the policy of separating the races is usually

interpreted as denoting the inferiority of the negro group.

A sense of inferiority affects the motivation of a child to

learn. Segregation with the sanction of law, therefore,

has a tendency to (retard) the educational and mental

development of Negro children and to deprive them of

some of the bencfits they would receive in a racial(ly)

integrated school system.

Id. at 494,

Thus, if Brown is correct that education “is the very foun-

dation of good citizenship,” “awaken[s] the child to cultural

values,” and allows a child to “adjust normally to his environ-

ment,” Brown, 347 U.S. at 493, 494, the above inequality,

harm, and deprivation of the intangible aspects of education

can have no other effect than to impose second class citizen-

ship on minorities.

Again, the fact that the schools in the instant case are not

racially isolated under the sanction of law does not then mean

that these harms are not a threat or that Brown's promise has

—aE- Sw = ares

been achieved. In fact, that wide isolation exists after all the

courts’ remedial efforts is evidence that Brown's struggle to

eliminate racial stigma and the relevance of racial identifiabil-

ity has not been achieved and that the harms of isolation

persist. To conclude, as the Petitioners do (Petr’s Br. at 31),

that the racial isolation is not seriously problematic because

the isolation is not de jure or intentional is to be as blind to

reality as the majority was in Plessy when it wrote “the

underlying fallacy of the plaintiffs argument [is] the

assumption that the enforced separation of the races stamps

the colored race with a badge of inferiority.” 163 U.S. at 551.

The majority simply denied the harm that the Court in Brown

_ made manifest fifty years later. Just as “[e]veryone kn[ew in

Plessy| that the statute in question had its origins in the

purpose . . . to exclude colored people from coaches occupied

by or assigned to white persons,” so too do we know that

inequality and stigma continue to proceed hand-in-hand with

racial isolation due to a myriad of factors, including those

discussed above. /d., at 557.

Il. THE COURT’S LONGSTANDING DEFERENCE

TO SCHOOL DISTRICTS IN REMEDYING

THE HARMS OF RACIAL ISOLATION IS

NECESSARY TO ACHIEVE THE UNFINISHED

PROMISE OF BROWN.

By compelling the use of race to integrate schools, the

decisions in Brown and subsequent cases achieved resound-

ing success at times. Although integration was essentially

non-existent in the years immediately following Brown, after

the Court announced affirmative desegregative obligations on

the part of school districts in Green and Congress created

financial consequences for the failure to desegregate in the

Civil Rights Act of 1964, the southern states began a rapid

process of desegregation. See Gary Orfield and Chungmei

Lee, Racial Transformation and the Changing Nature of

Segregation, 9 (Jan. 2006), available at http://www.civil

rightsproject.harvard. edu (hereinafter Racial Transformation).

Throughout the 1970’s and into the mid 1980's, this progress

in desegregation continued both regionally and nationally. /d.

at 31.

The Court was clearly the first to act and a driving force in

desegregation, but ironically its first instructions regarding

desegregation placed the obligation, discretion and flexibility

in the hands of school districts. In Brown //, the Court wrote

that the “primary responsibility for elucidating, assessing, and

solving th{e] problems” of desegregation rested with “school

authorities.” 349 U.S. at 299. The Court continued to adhere

to this principle throughout its desegregation jurisprudence.

See, e.g., Green, 391 U.S. at 437-38 (placing the duty of

desegregation on school boards); Milliken, 418 U.S. at 744

(expressing concern over depriving schools of loca! control).

As years of court supervision passed, however, the Court

became increasingly concerned with its role in monitoring and

constraining local control of school operations. Thus, rather

than continued coercion of school districts, the Court indicated

that the time was coming for lower courts to withdraw from

these cases. For example, the Court emphasized in Missouri v.

Jenkins, 515 U.S. 70, 99 (1995), that “local autonomy of local

school districts is a vital national tradition” and “a district court

must strive to restore state and local authorities to the control

of [their] school system.” See also Bd. of Educ. of Oklahoma

City Public Schs. v. Dowell, 498 U.S. 237, 247-48 (1991)

(indicating desegregation decrees “are not intended to operate

in perpetuity” and focusing on “necessary concern{s] for the

important values of local contro! of public school systems’’).

Unfortunately, as the courts began effectuating this with-

draw in the late 1980’s, our nation’s public schools began

experiencing dramatic resegregation, which has continued to

the point that the level of segregation today is similar to that

which existed when the schools initially began efforts to

desegregate. See Racial Transformation, supra, at 31. This

trend is most startling in our urban school districts where a

majority of schools are almost exclusively attended by

students of color and predominantly by students of the lowest

income levels. These schools are the most racially isolated in

the nation, with “more than half of the nation’s African

American and Latino students attending public schools in

which at least three-quarters” of their peers are of color.

Nancy Kober, A Public Education Primer: Basic (and

Sometimes Surprising) Facts about the U.S. Education Sys-

tem 7 (Center on Education Policy 2006). Tragically, it is not

only the segregation in schools that has reemerged but also

the inequality that has always accompanied it. These same

urban minority students are “much more likely than white

students to attend high-poverty schools.” /d. at 6. Moreover,

these schools have:

higher percentages of students who speak a language

other than English at home, deteriorating facilities, higher

rates of poverty among students, low teacher salaries

compared to their suburban counterparts, lower quality

teachers . . . larger overall student bodies, substantially

higher percentages of minority students, and higher

percentages of students who were eligible for free or

reduced lunch.

Michael Selmi, Race in the City: The Triumph of Diversity

and the Loss of Integration, 22 J.L. & Pol. 49, 70-71 (2006).

Due to constitutional constraints, the federal courts conclude

they no longer have the power to intervene to alleviate

Scgregation and inequality. Yet the courts’ options are far

more constrained than those of school districts. Again, since

Brown, the Court has emphasized that wide authority and

discretion rests with school boards as to these matters. Most

important, the Court has indicated that school boards can take

more action to desegregate than the courts themselves could

otherwise compel. For instance, the Court in Swann wrote,

(s]chool authorities are traditionally charged with broad

power to formulate and implement educational policy

and might well conclude, for example, that in order to

prepare students to live in a pluralistic society each

school should have a prescribed ratio of Negro to white

students reflecting the proportion for the district as a

whole. To do this as an educational policy is within the

broad discretionary powers of school authorities; absent

a finding of constitutional violation, however, that would

not be within the authority of a federal court.

402 U.S. at 16. Similarly, when addressing a ballot initiative

that would prohibit integrative busing in Scattle, this Court

noted that the power to address the racial problem in the

schools was within the proper power of the local school board

and should not have been abrogated. Washington v. Seattle

Sch. Dist. No. 1,458 U.S. 457, 474 (1982).

If Brown's promise and purpose is to live on, the Court

should continue to take this same deferential approach to-

ward schools districts. That segregation and inequality have

emerged in a manner eerily reminiscent of the conditions that

existed at the time of Brown is borne out by extensive data.

___ That since Brown the Court has largely left the solution to

these problems to local authorities is borne out by the Court’s

own language above. See also Jenkins, 515 U.S. at 89 (reit-

erating that one of only two “ultimate inquir{ies]” in deseg-

regation cases is whether the district has acted in “good faith”

commitment to desegregation). The only question now is

simply whether the Court will ironically stand in the way of

Brown's continuation or whether it will allow school districts

to continue the work that the Court itself compelled of them

for years.

II. VOLUNTARY SCHOOL INTEGRATION PLANS

ARE VALUABLE AND NECESSARY TO

ACHIEVING BROWN’S PROMISE. ,

One clear lesson we have learned from the half-century of

attempting to meaningfully enforce Brown is that school inte-

gration does not occur by benign neglect or happy accident.

Left alone to follow segregated housing patterns, school dis-

tricts will resegregate. See Racial Transformation, supra, at

31. But, in the face of evidence that history seems to be

rapidly marching backwards, one encouraging development

stands as a potential corrective to the resegregation trend: In

recent years, educators, communities, and institutions of

higher education have voluntarily pursued racially and

ethnically integrated learning environments. See Looking to

the Future: Voluntary K-12 School Integration, A Manual for

Parents, Educators, and Advocates at 20-25 (2005), avail-

able at http:// www.civilrightsproject.harvard.edu/resources/

manual/deseg_manual.php [hereinafter Looking to the Fu-

ture]. With-out a court mandate to desegregate, school dis-

tricts around the country are using voluntary integration plans

to combat the affects of segregation on the child, the class-

room, and society at-large. /d. at 16, 20-25. These voluntary

efforts have come about because communities recognize the

educational and social value of integration. /d at 15-19, 20.°

A. Integration Plans Offer Educational, Occupa-

tional and Societal Benefits for Black and

White Children.

Extensive research continues to prove the educational,

occupational, and societal benefits to ai/ students—aminority

and white—from racially diverse schools. Looking to the Fu-

ture, supra, at 17-19.° Positive interactions with students of

* See also Derek Black, The Case For The New Compelling Govern-

ment Interest: Improving Educational Outcomes, 80 N.C. L. Rev. 923

(2002) (detailing the extensive research and data establishing the tangible

benefits of integration for all students in primary and secondary schools).

° See also Heidi McGlothlin & Melanie Killen, Intergroup Attitudes of

European American Children Attending F. thnically Homogeneous Schools,

77 Child Development 1375-1386 (September/October 2006) (showing

that white grade school and high school children attending segregated

schools are more likely to develop biased attitudes toward members of

other races); Carl Bankston, II] & Stephen J. Caldas, The American School

other races and ethnicities in integrated environments pro-

mote cross-racial understanding and dialogue, higher scores

on achievement tests, lower dropout rates, access to broader

social networks of resources, and higher aspirations. /d., at

Dilemma: Race and Scholastic Performance, 38 Soc. Q. 423, 428 (1997)

(showing racially integrated settings are linked to improved achievement

for black high school students); Jomills Henry Braddock, II & James M.

MePartland, The Social and Academic Consequences of School Deseg-

regation, in Equity and Choice 5, 63-68 (1988) (showing both long and

short term consequences of racially diverse primary and secondary schools

and colleges, including improved race relations, increased academic

achievement, and preparation for diverse work settings); Marvin P.

Dawkins & Jomills Henry Braddock, II, The Continuing Significance of

Desegregation: School Racial Composition and African American Inclu-

sion in American Society, 63 J. Negro Educ. 394, 397-400 (1994)

(reviewing studies showing that black students from majority white

elementary and secondary schools are more likely to persist at majority

white colleges, have higher job expectations, move into integrated

neighborhoods, acquire jobs, major in scientific or technical fields, and

work in desegregated work environments); Maureen T. Hallinan, Diver-

sity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St.

L.J. 733 (1998) (providing social science evidence supporting the theory

that racial diversity promotes educational! benefits in primary and secon-

dary schools and in higher education); Mathtech, Inc., The Outcomes of

Diversity in Higher Education, in Mid-Year Report Prepared for Office of

Educational Research and Improvement, V\l-4 to V1I-7 (1998) (conclud-

ing that racial diversity has positive effects on student cognitive growth,

interaction in the diverse work environment, and breaking down racial

stereotypes); Janet Ward Schofield, Review of Research on School

Desegregation's Impact on Elementary and Secondary School Students, in

Handbook of Research on Multicultural Education 597 (hereinafter Hand-

book] (James A. Banks ed., 1995) (providing an overview of the social

science evidence, both positive and negative, behind the value of diversity

in .s.ary and secondary cducation); Robert E. Slavin, Cooperative

Learning and Intergroup Relations, in Handbook, supra, 628, 632 (show-

ing that cooperative learning in racially diverse primary and secondary

schools can improve racial attitudes and academic achievement among all

students); Robert E. Slavin, Effects of Biracial Learning Teams on Cross-

Racial Friendships, 7\ J. Educ. Psychol. 381, 386 (1979) (showing the

long term positive effects of interracial cooperative learning).

17-19.’ Long-term benefits include a racially diverse society,

reduced racial stereotypes, workplace preparation, increased

civic engagement and a desire to live in integrated settings.

Id. at 18.° Endorsing Brown’s idea of integration, this Court

recently recognized the long-term benefits of educational

diversity in higher education in Grutter when it noted that

“numerous studies show that student body diversity promotes

learning outcomes, and ‘better prepares students for an

increasingly diverse workforce and society, and better

prepares them as professionals.”” 539 U.S. at 330 (internal

citations omitted). These benefits are even greater for

children in elementary and secondary schools, and accrue to

all children. Rather than “separate children in a way that

harms both those excluded from better schools and white

students in those schools who are not being prepared for

success in multiracial communities and workplaces of the

future,” integration brings them together for the benefit of all

children and society. Racial Transformation, supra, at 4.

B. A Substantial Number of School Districts Have

Adopted Voluntary Integration Plans.

Recognizing their educational, occupational and societal

benefits, in recent years a substantial number of school dis-

tricts have actively investigated and implemented voluntary

” See e.g. Jomills Henry Braddock, Il et al., 4 Long-Term View of

School Desegregation: Some Recent Studies of Graduates as Adults, 66

Phi Delta Kappan 259, 260-61 (Dec. 1984) (discussing several studies that

show white and black students who attend desegregated schools are more

likely to attend diverse colleges as adults, live in integrated neighbor-

hoods, work in diverse firms, and have friends of another racial group).

* See also Jomills Henry Braddock, Il & James McPartland, Social-

Psychological Processes That Perpetuate Racial Segregation: The

Relationship Be-tween School and Employment Desegregation, 19 J,

Black Stud. 267, 283-84 (1989) (suggesting that high school desegre-

gation promotes positive perceptions and social contacts among blacks

and whites).

24 :

integration plans. These plans use a variety of strategies “to

encourage racial integration and to produce the kinds of

educational benefits that flow from integrated learning”

environments. Looking to the Future, supra, at 20. The most

common strategies include, among others, attendance zones,

student transfers, magnet schools, school choice, and inter-

district transfer programs. /d. at 20-24. To date, about

seventeen percent of public school students attend “schools of

choice” or public schools chosen by their parents. See A Pub-

lic Education Primer, supra, at 4. Two of the most popular

types of school choice programs include magnet schools,

which have specialized curricula designed to attract students

of diverse racial and ethnic backgrounds, and charter schools,

which are publicly funded schools governed by a group under

a charter. Today, over two million public school students

attend magnet schools. Looking to the Future, supra at 22.

C. The United States Department of Education

Has Endorsed Voluntary School Integration

Plans.

The recognition of the salutary value of voluntary integra-

tion plans is not confined to individual public school districts

but has also been promoted by the United States Department

of Education through its Magnet Schools Assistance Program

(MSAP). See Id., at 22. MSAP provides grants to “assist in

the desegregation of public schools by supporting the elim-

ination, reduction, and prevention of minority group isolation

in elementary and secondary schools with substantial num-

bers of minority group students.” U.S. Dept. of Educ.,

Magnet Schools Assistance, available at http://www.edu.gov/

programs/magnet/index.html. Nation-wide, school districts

are taking advantage of MSAP by following in the footsteps

of New Jersey’s Montclair Magnet System, a system

“dedicated to becoming the national role model for public

integrated education.” Montclair Magnet System, Histor-

ical Perspective, available at http://www.montclair.k 1 2.nj.us/

district/magnet/history.cfm. A pioneer in the magnet school

model, Montclair’s school choice system was originally

implemented in 1977 as a voluntary desegregation plan; today

it is know for its “positive impact on the community.” See id

Most recently, Montclair’s educational system was selected

by the U.S. Department of Education as one of the six best

magnet systems in the country. See http:// www. montclair.

k12.nj.us.district/magnet/index.cfm.

D. Federal Courts, Including this Court, Have

Recognized the Value of Voluntary School

Integration Plans. .

This Court has recently recognized the benefits of integra-

tion. In Grutter, 539 U.S. at 330, the Court found that the

University Of Michigan Law School has a “compelling inter-

est in a diverse student body,” and that race was one impor-

tant factor in that diversity. Such diversity

“promotes ‘cross-racial understanding,’ helps to break

down racial stereotypes, and ‘enables [students] to better

understand person of different races.’ These benefits are

‘important and laudable,’ because ‘classroom discussion

is livelier, more spirited, and simply more enlightening

and interesting’ when the students have ‘the greatest

possible variety of backgrounds.

These benefits are not theoretical but real, as major

American businesses have made clear that the skills

needed in today’s increasingly global marketplace can

only be developed through exposure to widely diverse

people, cultures, ideas, and viewpoints.

Id. (internal citations omitted)

To be sure, Grutter’s holding that diversity is a compelling

State interest spoke specifically to higher education. How-

ever, nothing in this Court’s opinion indicates that its recogni-

tion of the benefits of diversity in universities and graduate

schools are somehow inapplicable to primary and secondary

public schools. The Brown Court originally noted, as Grutter

later came to reinforce, that factors “incapable of objective

measurement,” including the ability of students of different

racial backgrounds to “study [and] engage in discussions and

exchange views with other students,” contributed to the qual-

ity of law and graduate schools, and that, rather than being

inapplicable, “[s]uch considerations appl{ied] with added

force to children in grade and high schools.” Brown, 347

U.S. at 493-94.

Similarly, for decades, federal courts have corss‘ently noted

the benefits of integration and the recognition oi local school

authorities to voluntarily remedy the harms of de facto seg-

regation or racial isolation. See Parents Ass'n of Andrew

Jackson High Sch. v. Ambach, 738 F.2d 574, 581 n.9 (2d. Cir.

1984) (school boards may take otherwise “constitutionally

suspect measures to counteract the perceived problem of

accelerated white flight”); Clark v. Bd. of Educ. of Little

Rock, 705 F.2d 265, 271 (8th Cir. 1983) (“Although the

possibility of white flight and consequent resegregation can-

not justify a school board’s failure to comply with a court

order to end segregation, it may be taken into account in an

attempt to promote integration.”); Johnson v. Bd. of Educ. of

Chicago, 604 F.2d 504, 518 (7th Cir. 1979), vacated and re-

manded on other grounds, 457 U.S. 52 (1982) (“[T]he ab-

sence of a constitutional duty on the part of the school

authorities to establish racially-based enrollments does not

preclude the Board from prescribing a racial balance to rem-

edy the segregative impact of demographic change.”); Deal v.

Cincinnati Bd. of Educ., 369 F.2d 55, 61 (6th Cir. 1966)

(“Although boards of education have no constitutional

obligation to relieve against racial imbalance which they did

not cause or create, . . . it is not unconstitutional for them to

consider racial factors and take steps to relieve racial

imbalance if in their sound judgment such action is the best

method of avoiding educational harm.”)).

IV.ALLOWING SCHOOL DISTRICTS TO USE

RACE-CONSCIOUS MEASURES IS THE LAST

PROMISE.

While the trend toward voluntary integration is a welcome

development, the threat of school segregation is neither obso-

lete nor speculative. Racial Transformation, supra, at 4.

School segregation is increasing nationally, regionally and in

individual school districts due to residential segregation, con-

centrated levels of poverty, and repeals of desegregation

plans beginning in the 1990s with this Court. Jd. at 37.

Moreover, no public school district has ever succeeded in

integrating its schools without consciously using race as a

tool. In light of that real-world experience, race-conscious

measures stand as the last best chance of realizing Brown’s

promise of equal education and opportunity for all.

A. Narrowly Tailored Race-Consciousness Is an

Irreplaceable Tool in Voluntary School Inte-

gration Plans.

This Court validated the use of race or race-conscious

measures to achieve integration in Grutter where it found that:

“diversity is a compelling state interest that can justify the use

of race in university admissions.” Grutter, 539 U.S. at 325.

At this point, in addition to the Sixth and Ninth Circuits, the

Third Circuit has also applied Grutter’s holding to primary

and secondary education. In Comfort v. Lynn Sch. Cmty., 418

F.3d 1 (1st Cir. 2005) cert. denied, 126 S. Ct. 798 (2005), the

First Circuit upheld a race conscious student transfer policy

that provided students with an opportunity to attend another

school within the district if doing so either reduced racial

isolation or improved racial diversity.

As the courts below noted, the race-conscious policies

adopted in Seattle and Louisville are permissible because they

are narrowly tailored to serve the compelling interest of

diversity. Like the law school in Grutter, the Seattle and

Louisville schools “consider{] race as one factor among

many” in assigning students to schools. Grutter, 534 U.S. at

340. Furthermore, “{njarrow tailoring does not require

exhaustion of every conceivable race-neutral alternative.” /d.

at 339. This Court observed in Grutter,

“The District Court took the Law School to task for

failing to consider race-neutral alternatives such as

‘using a lottery system’ or ‘decreasing the emphasis for

all applicants on undergraduate GPA and LSAT scores.’

But these alternatives would require a dramatic sacri-

fice of diversity, the academic quality of all admitted

students, or both.”

Id. at 340. Similarly, using alternatives such as a lottery sys-

tem, or attempting to integrate by socio-economic status,

would not ensure diversity in the public schools in Seattle and

Louisville.

In the Louisville case, for example, the district court found

that narrow-tailoring did not require the school district to

attempt to integrate using a lottery system, noting that “(such

a system . . . would require a ‘dramatic sacrifice’ in student

choice, geographic convenience and program specialization.”

McFarland v.Jefferson Co. Bd. of Educ., 330 F. Supp. 2d 834,

861 (W.D. Ky. 2005). The Ninth Circuit also addressed the

possibility of a lottery system for the Seattle schoo! district,

and observed that it would not serve the goal of integration

because

[district patterns [in Seattle] indicate that more people

choose schools close to home. That would mean that the

pool of applicants would be skewed in favor of the

demographic of the surrounding residential area. That is,

the applicant pool for the north area oversubscribed high

schools would have a higher concentration of white

students and the applicant pool for the south area over-

subscribed high school would have a higher concentra-

tion of nonwhite students. Thus, random sampling from

such a racially skewed pool would produce a racially

skewed student body.

Parents, 426 F.3d at 1190. The court also pointed out that the

Seattle school board had considered achieving integration by

using poverty as a proxy for race, but determined that such a

method may be ineffective and would have adverse effects.

Id. at 1188-89. Since integrated schools will not be attained

without these race-conscious methods, the paramount vision

conceived in Brown will not be realized if they are dis-

allowed.

B. Upholding Race-Conscious Measures in

Voluntary Integration Plans Would Keep Faith

with Brown; Denying them Would Break with

Brown’s Promise of Full, Equal, and Integrated

Educational Opportunities for All.

“History,” wrote the poet Byron, “with all her volumes

vast, hath but one page.” This page of our national history of

school integration is not new. Both as a matter of constitu-

tional jurisprudence and historical fact, this Court once before

faced the choice to permit in primary and secondary school

education that which it had already endorsed in higher educa-

tion. With the present companion cases, the Court now

confronts, in the wake of its 2003 Grutter decision, virtually

the exact same legal landscape the 1954 Brown court faced in

the wake of its 1950 decision in Sweatt. Just as Grutter

endorsed the judgment that integration is vital in the law

school classroom, Sweatt established that segregation was

unsupportable there. 339 U.S. at 629. Just as the Brown

court extended the holding in Sweatt to primary and secon-

dary education, so too this Court should extend Grutter’s

holding in exactly the same way. Perhaps the remarkable

George Gordon Noel Byron, Lord Byron, Childe Harold’s Pil-

grimage, Canto iv, stanza 108, in The Complete Poetical Works of Lord

Byron, Volume 2 (Jerome J. McGann ed.) (1981).

factual parallel between the Sweatt and Brown decisions and

Grutter and the present companion cases can be dismissed as

mere precedential serendipity, but as a matter of constitu-

tional jurisprudence the point comes to this: Sweatt is to

Brown what Grutter is to the present companion cases. To

uphold the decisions of the lower courts in these cases would

be to keep faith with Brown. To reverse would be to break

with its promise of full, equal, and integrated educational

opportunities for all.

CONCLUSION:

In 1954, this Court in Brown courageously set the nation

on a path toward racial integration. In the more than fifty

years since, the path has been neither straight nor easy and,

for all of Brown’s successes, the truth is here and now we

find ourselves at a critical point where we will either continue

on the path to school integration or turn back toward reseg-

regation. Narrowly-tailored, race-conscious voluntary inte-

gration is consistent with the vision of the founding litigators

who first envisioned Brown, represents the natural evolution

of this Court’s Brown opinion, and stands as the last best

chance of achieving Brown’s fundamental goal of meaningful

and effective public school integration. We pray this Court

not break faith with Brown, but instead reaffirm its promise,

and uphold the decisions of the circuit courts to give local

school boards the irreplaceable race-conscious tools they

need to continue voluntarily integrating their schools.

KURT L. SCHMOKE

Dean & Professor of Law

OKIANER C. DARK

Associate Dean &

Professor of Law

* Counsel of Record

October 10, 2006

Respectfully submitted,

ADERSON BELLEGARDE FRANCOIS *

Assistant Professor of Law &

Supervising Attorney

Civil Rights Clinic

DEREK W. BLACK

Assistant Professor of Law

HOWARD UNIVERSITY SCHOOL

OF LAW

2900 Van Ness Street NW

Washington, DC 20008

(202) 806-8065

APPENDIX

Cw v4

APPENDIX

The Howard law professors and clinical supervising attor-

neys participating as amici are as follows:

Peter Blum, Instructor of Law

Alice Gresham Bullock, Professor of Law

Carmia Caesar, Supervising Attorney,

Equal Justice Project

Lisa A. Crooms, Professor of Law

~ Brian Gilmore, Supervising Attorney,

Fair Housing Clinic

Warner Lawson, Jr., Professor of Law

Laurence C. Nolan, Professor of Law

Tamar Meekins, Associate Professor of Law &

Director, Clinical Law Center

Josephine Ross, Associate Professor of Law &

Supervising Attorney, Criminal Justice Clinic

Andrew E. Taslitz, Professor of Law

Patricia M. Worthy, Professor of Law

The following law professors also participate as amici:

Irene Segal Ayers, Acting Assistant Professor of Law,

The Lawyering Program, New York University School

of law

Peggy Cooper Davis, Shad Professor of Law, New York

University School of Law

Meredith Johnson Harbach, Acting Assistant Professor

of Law, The Lawyering Program, New York University

School of Law

Mary S. Holland, Lirector Legal Methodology Program,

New York University School of Law

K. Babe Howell, Acting Assistant Professor of Law, The

Lawyering Program, New York University School of

Law

Andrea McArdle, Professor of Law, City University of

New York School of Law

Jenny Roberts, Assistant Professor of Law & Director

Criminal Defense Clinic, Syracuse University School of

Law

David B. Thronson, Associate Professor of Law, Boyd

School of Law at UNLV

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.