Friday, May 16, 2014

Parents Involved and the Struggle for Historical Memory | ACS

Parents Involved and the Struggle for Historical Memory | ACS:

by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

*May 17 is the 60th Anniversary of the landmark Supreme Court opinion, Brown v. Board of Education. This post is part of an ACSblog symposium noting the landmark decision and exploring the ongoing inequalities in our society.
The issue before the Supreme Court in Parents Involved in Community Schools v. Seattle School Dist. No. 1 was whether it was constitutionally permissible for a school district to use race as a basis for assigning public school students to schools for the purposes of achieving a greater degree of racial integration than would otherwise have occurred under, for example, a program assigning children to the school nearest their homes. As Chief Justice Roberts wrote in an opinion joined by three of his colleagues, an important “debate” in the case was over “which side is more faithful to the heritage” ofBrown v. Board of Education. That debate is part of what historians have called the struggle for historical memory.
According to the Chief Justice, “the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: ‘[T]he Fourteenth Amendment prevents states from according differential treatment to American children in the basis of their color or race.’” What, he asked, “do the racial classifications at issue here do, if not accord differential treatment on the basis of race?” And, he quoted Robert Carter, who in arguing the case for the NAACP, said, “no State has any authority … to use race as a factor in affording educational opportunities among its citizens.” Chief Justice Warren had written that a school board has to “determin[e] admission to the public schools on a nonracial basis.” What, Roberts again asked, “do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?”
Justice Stephen Breyer called his dissent in PICS the opinion he has felt most deeply about. For him, “Brown held out a promise…. It was the promise of true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.” Alluding to the Little Rock school crisis of 1957-58, he said, “attitudes towards race in this Nation have changed dramatically.” Parents in Seattle and Louisville “want their children to attend schools with children of different races.” They made a “modest request” that the Court “not … take from their hands the instruments they have used to rid their schools of racial segregation.” The nation had “not yet realized the promise of Brown,” and Roberts’s “position … would break that promise.” Breyer noted in his oral presentation of his dissent that the dissent was “twice as long as any I have written before,” and ended by quoting the dissent’s final line: “This is a decision that the Court and the Nation will come to regret.”

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