On Friday, ACS welcomed Goodwin Liu, a Professor at Boalt Hall, to discuss the recent Seattle and Louisville desegregation cases, the lessons of Brown and Plessy and the Supreme Court’s performance as a protector of civil rights.
Professor Liu began with an overview of the Seattle and Louisville cases, which considered to what extent, if at all, school districts can use race as a factor to achieve diverse schools. Writing for the plurality, Chief Justice Roberts held that race cannot be used for this purpose. For the dissent, Justice Breyer found that not only would such use of race be acceptable, it is not even deserving of strict scrutiny. Justice Kennedy staked out a middle ground, noting that while school districts have a very important interest in racially diverse schools, school districts may not use race to classify individual students.
Liu examined these cases through the lens of Plessy. Justice Harlan’s lonely and famous dissent includes the often-quoted line “our constitution is colorblind and neither knows nor tolerates classes among its citizens.” However, Harlan wrote this sentence as only part of a broader paragraph and, Liu suggested, without context it has lost its intended meaning. In fact, Harlan’s words indicated a belief that the constitution does not permit a system of “racial caste” and that the 14th amendment guarantees membership in American society.
The Plessy majority denied the social facts of the effects of segregation, claiming that if minorities felt slighted by “separate but equal,” it was a choice that they made, not something inherent in the doctrine. Roberts also denies social facts when he equates the white Louisville children denied the opportunity to attend their first choice school to the African American children of Brown. Liu noted that in detaching his reasoning from social meaning, Roberts has arrived at an interpretation of Brown that no members of the Brown Court would have accepted.
Professor Liu remarked that he was not surprised by the Court’s recent decision, due in part to the Court’s current membership but also due to the Court's history of failing to advance civil rights. Indeed, Liu argued, Congress has usually led this charge, with the Court often signing on after the fact. It is not that the Court has been unimportant to civil rights, Liu contended, but that Congress has traditionally led the way and that as a result most civil rights’ victories have had a basis in a majoritatarian process, which provides an authority the Court never could.
Liu used these lessons of history to argue for a specific model of civil rights advocacy which emphasizes not simply getting cases to the Supreme Court, but allowing issues to “percolate” through the legislature such that when they reach the Court, the Court need not lead so much as follow. Specifically for school district diversity, Liu suggested an approach in which Congress incentivizes intra-district diversity through requirements on federal funds.