Accepting Justice Kennedy's Dare

Accepting Justice Kennedy's Dare: The Future of Integration in a Post-PICS World

Abstract: In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony Kennedy, in his PICS concurrence, recognized this and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, the public schools of Jefferson County (Louisville), Kentucky, one of the districts rebuked in PICS, have accepted Justice Kennedy’s dare by crafting a nuanced and race-conscious student assignment plan aimed at promoting broadly-defined diversity and increasing the quality of education across the district.

The article argues two distinct points. First, it argues that the new plan is a constitutionally permissible response to PICS. Second, it argues that the new plan’s broadening of both the definition of diversity and the mission of a school district represents the beginning of a new post-Brown era that is responsive to the realities of public education in the 21st century. By tethering its analysis of PICS - and specifically of Justice Kennedy’s concurrence - to a specific response to that decision, the article provides a detailed analysis of the new constitutional framework in this area. Ultimately, the article argues that because it is both constitutional and educationally-relevant, the new plan represents the future of integration for any district willing to make the commitment to providing the educational benefits of diverse public schools to its students.

This article appeared in the Fordham Law Review.  The full article is available here.

Supreme Court Notebook - Snyder v. Louisiana

In 1879, the Supreme Court heard a case regarding the murder trial of a former slave. The jury for that trial was, predictably and by law, made up entirely of white men. The defendant was convicted and sentenced to death. The Supreme Court was charged with interpreting the constitutional amendments adopted in the wake of the Civil War to determine whether American citizens, including emancipated slaves, had a right to a trial with a jury untainted by racial discrimination.

Justice William Strong answered with a rhetorical question: “How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal protection?”

On the grounds that the state had impermissibly excluded black citizens from serving on juries, the Court vacated the defendant’s conviction and remanded the case.

Fast forward nearly 130 years from that step forward for civil rights – a time period that has included many steps forward in American race relations. Last week, the Supreme Court offered up evidence that steps forward in American race relations are small and often followed by steps back. See if this sounds familiar.

In 2008, the Supreme Court heard a case regarding the murder trial of an AfricanAmerican. The jury for that trial – in Louisiana, a state that is more than 30% African American – did not include any African Americans, the prosecutor having eliminated through peremptory challenge all African Americans in the final jury pool. The defendant was convicted and sentenced to death. The Supreme Court was charged with determining whether the prosecutor’s conduct showed impermissible discriminatory intent.

Obviously, the two cases are different – one is a challenge to a deliberately discriminatory state law, the other a challenge to an arguably discriminatory state prosecutor – but there were sufficient echoes in the contemporary case to give even today’s conservative Supreme Court pause.

Writing for a 7-2 majority, Justice Samuel Alito described the prosecutor’s allegedly non-racial reasons for dismissing one of the potential African American jurors as “suspicious.” The prosecutor’s non-racial explanation for the dismissal of that juror, a college student concerned about missing too much school, was that he looked nervous and might be eager to end the deliberations quickly by pushing for the defendant’s acquittal or conviction for a lesser crime so that he could back to school. To ease the prosecutor’s – and the juror’s – concern, the trial court contacted the juror’s dean who assured them that if the student were away only a week – as anticipated by the prosecutor himself – then jury service would not be a problem. The prosecutor was unconvinced and struck the juror.

What made this conduct “suspicious” to Justice Alito was that the prosecutor did not show similar concern for potential white jurors who likewise expressed the desire to avoid prolonged absence from employment or other responsibilities. The prosecutor’s “pretextual explanation naturally gives rise to an inference of discriminatory intent,” Alito wrote, concluding that the trial court committed a clear error in allowing the student to be dismissed.

Comparing these two cases, there are signs both of the significant progress that has been made on the race front and of the often subtle ways the race problem continues to manifest itself today. No longer are there state laws that exclude entire classes of citizens from the full benefits of citizenship, yet there remain juries without black members that convict black defendants. No longer must the Supreme Court deem obviously discriminatory conduct to be against the Constitution, yet the Court continues to confront cases of less blatant, though no less pernicious, discrimination.

In 2008, no less so than in 1879, courts and citizens alike continue the project of, as Justice Strong wrote in the 19^th century, “securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.”

Don't take my word for it - read the cases yourself.....

Strauder v. West Virginia – 100 U.S. 303 (1879)

Snyder v. Louisiana – 552 U.S. ___ (2008)

The Trouble with Diversty - Book Review

I have written several times (here, here and here) about the Supreme Court case in which the Court considered the constitutionality of school assignment plans in Louisville and Seattle that used race as a factor in maintaining diverse student populations in public schools. I criticized the Court for ignoring the almost-inevitable consequence of rejecting these plans – the resegregation of schools. However, in a book I’ve recently finished – The Trouble with Diversity, by Walter Benn Michaels – I found myself wondering about that resegregation: so what?

The Trouble with Diversity makes the argument that the focus on diversity as a goal has served as a distraction from increasing inequality in our society. Michaels is not so much against diversity – he is simply troubled by the way in which a room full of millionaires who happen to be of different races is praised as a diverse gathering. The fact that there are millionaires of all races, Michaels argues, makes it difficult to see that there are many more Americans of all races living in poverty with long odds of improving their lot. (Of course, the fact that a disproportionate number of those in poverty are African American only further complicates the balance between diversity and equality)

Michaels makes a compelling case that the focus on ethnic diversity in everything from university admissions to corporate boards has only hidden a system that favors the already-wealthy (regardless of race) at every turn. The danger is that it is hidden in a way that makes us (and by “us,” he means the educated and relatively well off who may be able to do something about the situation) feel better about ourselves: “A world of people who are different from us looks a lot more appealing than a world of people who are poorer than us.”

There is much to admire in The Trouble with Diversity – Michaels’ clarity of thought and writing, and his obsession with a society that is truly (as opposed to merely rhetorically) one of equal opportunity. However, in dismissing the quest for diversity as almost an intentional distraction from the quest for equality, Michaels goes too far.

The quest for diversity does not seek diversity for diversity’s sake. Rather, it is a direct response to discrimination. If personal biases are preventing otherwise qualified individuals from moving forward, then the clamor for more diversity can help take those personal biases out of the equation. Where Michaels fails is in minimizing the degree to which race still does matter to even the African American millionaire. Perhaps diversity proponents have gone too far, but that should not obscure the fact that racial and ethnic discrimination persists.

Ultimately, the debate Michaels weighs in on is a chicken-and-the-egg question. Michaels believes that if we can get to equal opportunity, then diversity will follow, whereas diversity proponents argue that if we have more diversity in our schools and professions, equality will follow. Which brings us back to the resegregating effects of the Supreme Court’s decision: Michaels would not be bothered by schools that are all-black or all-white so long as those schools provided equal educational opportunities (separate, but really, truly equal). Michaels would even go on to say that the litigation about the race-conscious assignment policies may in fact distract from and pull resources away from ever achieving schools that offer equal educational opportunities. In Michaels’ world, there is no inherent problem with the resegregation of schools.

And maybe there is no inherent problem with it. However, Michaels is no less guilty of ignoring reality than the Supreme Court. In our society, there is an unfortunate correlation between a school’s quality and its racial makeup. That correlation is not going to disappear as a result of abandoning effects at diversity – the more likely result is that the correlation with only strengthen. The race-conscious assignment plans that the Supreme Court rejected were designed to offer better educational opportunities (not to mention the social benefits of an ethnically diverse group of peers) to students who would otherwise be learning in racially-isolated schools subject to that unfortunate correlation.

So I have not totally converted to the conclusion that resegregation does not matter. But thanks to this book, I will be careful to keep the underlying goal of diverse schools or workplaces or neighborhoods in mind – opportunity that is not determined by the color of skin.

What Can Brown Do For Us Now?

After the U.S. Supreme Court's recent rejection of school assignment plans in Louisville, Ky., and Seattle that were aimed at maintaining racial integration in schools, a variety of pundits and scholars trashed the court for sticking a fork in the most revered decision of the 20th century, Brown v. Board of Education. However, the ideals of Brown -- providing students with equal educational opportunities regardless of race or background -- are far from dead. What has been missing from much of the criticism of the June 28 decision is an analysis of what exactly makes integrated schooling so beneficial, and what advocates for equity in education can do within this new legal landscape to recapture those benefits.

The court's decision is potentially calamitous because it handcuffs districts that are working to achieve racial diversity, thus threatening to eliminate the proven benefits of integrated classrooms. Numerous studies have shown that students who attended racially integrated schools -- such as the students in Louisville and Seattle -- show higher levels of tolerance toward individuals of different ethnic backgrounds and an increased sense of civic engagement, when compared with peers who attended more racially isolated schools. Academically, the benefits for African-American students are immense, with studies showing higher graduation rates, larger enrollments in advanced courses, and even higher post-schooling salaries for African-American students who learned in racially integrated schools. Preliminary studies show similar benefits for Latino students. Meanwhile, the racial composition of schools has proven to have no effect on the academic achievement of white students.

Recognizing these benefits, school officials in Louisville and Seattle enacted plans aimed at maintaining racial diversity, in certain circumstances considering a student's race in making school assignments. It was this minimal use of race to achieve the districts' goals that troubled the court (or at least its majority in the 5-4 decision). In a line from the ruling that is already famous, Chief Justice John Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Unfortunately, it's not quite that simple. Brown itself actually ended discrimination on the basis of race in making school assignments. Something more than just ending discrimination has been needed to achieve Brown's ideal of providing equal educational opportunities to students of all races. Now that the court has ruled that the "something more" can no longer include consideration of race to ensure integrated schools, the question education advocates must confront is how to recapture the benefits of integrated education within the new limits of the law. One avenue that offers a particularly hopeful outlook is a shift in focus away from racial integration and toward socioeconomic integration.

The disadvantages that characterize many racially isolated schools -- inequitable resources, higher teacher turnover, fewer advanced classes -- and the lower average outcomes for students attending those schools -- higher dropout rates, lower graduation rates -- are even more pronounced in schools with high concentrations of poor students. The same educational benefits that flow to African-American and Latino students in racially integrated schools will flow to poor students of all races in schools integrated by socioeconomics.

One district that already uses this model is Wake County (Raleigh), N.C. In Wake County, where socioeconomic integration has been in practice since 2000, low-income students perform better than similarly situated students in other North Carolina districts. In addition, Wake County's minority students outperform the minority students in similar districts throughout the state. And the improved outcomes are not limited to low-income and minority students. In 2003, Wake County had the second highest graduation rate among the nation's 50 largest school districts. In addition, the cultural benefits of racially integrated schools, such as higher levels of tolerance among students, can also be captured by socioeconomically integrated schools. Unfortunately, there is a high correlation between income and race, such that creating schools with children from differing income levels is likely to have the effect of also creating schools with children from different races. Wake County, for example, has maintained much of its previous racial integration since switching from a racial to a socioeconomic integration plan in 2000. Income-based assignment plans also have the legal benefit of not triggering the strict judicial scrutiny that follows whenever a decision is made based on a student's race, making them less vulnerable to challenge.

With all due respect to Chief Justice Roberts, the way to end discrimination on the basis of race is to create a world where the playing field for individuals of all backgrounds is as level as possible. That leveling begins in our schools. Although the Supreme Court removed a critical tool in achieving opportunities that are equal for students of all races, other tools remain. It is now up to advocates of equity in education to find new ways to pursue Brown's ideals with the tools we have left. They are ideals -- with proven cultural and academic benefits -- worth fighting for.

Supreme Court Notebook - Ledbetter

How much do you know about the salaries of your coworkers? Talking among peers about compensation is always a little awkward and one-third of private employers actually prohibit such discussions of wages. The odds are that unless you are in charge, in the payroll department, or downright nosy, you probably don't know much about the compensation of your coworkers. This would make it nearly impossible for you to discover -- especially within 180 days of the time your pay is set -- that you are a victim of pay discrimination. Yet last week, the Supreme Court ruled that pay discrimination claims not brought within 180 days of setting the discriminatory salary are time barred. Unless you are nosy, you're out of luck.

The case, Ledbetter v. Goodyear Tire and Rubber Company, was brought by the only female supervisor at a Goodyear tire plant in Alabama. Ms. Ledbetter discovered late into her twenty year career at Goodyear that the salaries of males in the same position as her were higher -- the lowest paid man was paid $4,286 a month while Ms. Ledbetter earned only $3,727. In the trial court, Ms. Ledbetter was awarded $360,000 in back pay and compensatory and punitive damages, but that award was erased on appeal. Last week, the Supreme Court agreed with the appeals court, holding that Ms. Ledbetter brought her claim too late.

The law states that in order to bring an employment discrimination claim, the plaintiff must show that she suffered an "unlawful employment practice" in the 180 days prior to filing her complaint. Until last week's ruling, the Equal Employment Opportunity Commission operated under the theory that each paycheck distribution that reflected the discriminatory pay constituted a new "unlawful employment practice" that retriggered the 180 day clock. The Supreme Court, voting 5-4, disagreed.

Justice Ginsburg, notably the only woman on the Supreme Court (and someone who is paid the same amount as her male colleagues), read a blistering dissent from the bench. Justice Ginsburg wrote that even though Ms. Ledbetter had established that discrimination (as opposed to performance inadequacies) accounted for the pay differential, the Court's ruling "grandfathered" such discrimination in. "The unlawful practice," she wrote, "is the current payment of salaries infected by gender-based discrimination -- a practice that occurs whenever a paycheck delivers less to a woman than to a similarly-situated man."

I am not the first to criticize this decision and Senator Hillary Clinton has already pledged to introduce legislation that would render the decision moot. But it is disturbing that five members of the Supreme Court, including President Bush's two appointees, could be this out of touch with the purpose of discrimination laws. The world the Ledbetter opinion would create is one in which it is illegal to discriminate in pay based on gender, but only for the first 180 days after that pay is set. If an employer avoids a complaint during those first six months, the employer is free to discriminate for the rest of an employee's career.

The Supreme Court would dispute this characterization. They would argue that this is not so much a case about pay discrimination as it is about statutory construction. A theme of the more conservative members of the court -- including Justice Alito in this case -- is that it is not the Supreme Court's job to set public policy, but to interpret the law by strictly adhering to legislative text. The Bush Administration, however, who weighed in against the EEOC's interpretation, was singularly concerned with setting policy and the Supreme Court delivered precisely the policy the Administration sought. Even if the message the Supreme Court claims to have sent is "draft clearer legislation," the message they actually sent is "employers are free to discriminate if they are not caught in the first 180 days."

The advice to Americans is clear. For those beginning new jobs in the future, it would be wise on the first day to shake your coworkers' hands with the question, "And how much are you paid?" This will not only make you popular around the office, but if you do otherwise, the Supreme Court has ruled, you may simply be out of luck down the road.

Leaving Brown Behind - Part II

[NOTE: This is a follow up to last week's column]

During the Supreme Court hearing on the voluntary school integration cases heard last Monday, I was struck by a question posed by Justice Antonin Scalia. For the past week, I have grappled with the question and its implication, struggling to figure out how I might have answered it.

Frank Mellen, the attorney representing the Jefferson County (Kentucky) Public Schools, was attempting to make a distinction between the use of race confronted in Brown v. Board of Education in 1954 and the use of race by the JCPS plan aimed at maintaining a racial balance in schools of between 15 and 50 percent African American students. Brown was different, Mr. Mellen argued, because there existed two entirely distinct school systems, one white and one black. “That stigmatized the black children. It sent the message that the white race was dominant and superior and that the black race was inferior.”

At the word “stigmatized,” Justice Scalia piped up. He wondered whether the assumption underlying the JCPS plan was not itself stigmatizing. The JCPS plan, Justice Scalia said, was “based on the notion that a school that is predominantly black or overwhelmingly black cannot be as good as a school that is predominantly white or overwhelmingly white.” The potentially stigmatizing message sent by that assumption, Justice Scalia asserts, is similar to the message in Brown – that the white race is superior and the black race is inferior.

What Justice Scalia’s question exposes is that the JCPS plan to provide a quality education to all of its students is based upon the assumption that quality educational may not be available for students in a mostly-minority school. That assumption, Justice Scalia suggests and I agree, is potentially stigmatizing.

But the assumption Justice Scalia is so concerned about is not really an assumption at all, but a statistically-verified fact. Students in the typical mostly-minority schools do not receive the same quality educational opportunities as students in mostly-white schools or racially-balanced schools. This is measured in terms of teacher experience, teacher qualification, access to honors courses, diversity of curriculum, and many other ways.

So, after a week of wondering what made Justice Scalia wrong, I’ve concluded that he is actually right. Yes, it is stigmatizing to assume that black schools will not be as good as white schools. But, it is also stigmatizing – and far more damaging, in my opinion – to ignore the fact that mostly-minority schools typically are not as good as white schools and then confine black students to those mostly-minority schools.

In an ideal world, plans like that in JCPS would not have to exist to ensure that the most students receive a quality education. But we do not live in an ideal world. In the world we live in, Justice Scalia is likely to vote to strike down the JCPS plan. He will do so knowing that the effect will likely be an increase in the number of minority students attending mostly-minority schools. And he will do so knowing that mostly-minority schools in the United States in 2006 (the real world) do not typically provide equal educational opportunities to their students. In effect, his vote will be to send more minority students to schools providing fewer educational opportunities.

Justice Scalia would probably respond to such a charge that as a Supreme Court justice, it is not his job to consider the consequences of his decisions, but rather to interpret the Constitution. In other words, it is the world that must change, not his interpretation of the Constitution, if this unfortunate result for minority students is to be avoided.

This is precisely what makes Justice Scalia’s interpretation so dangerous. The fictional world for which he interprets law – a colorblind and ideal world – is appealing. It just is not the world in which the effect of this decision will be felt. But though Justice Scalia’s intepretation can wear the clothes of colorblindness and loyalty to the Constitution, it will achieve the exact same real world result as Jim Crow school segregation: separate and unequal schools with minority children being left behind.

Leaving Brown Behind - Part I

Today, the public schools of Jefferson County, Kentucky will take the national stage as the Supreme Court grapples with whether JCPS’s student assignment plan, a plan that takes race into consideration, passes constitutional muster. As an outsider who has studied the unsuccessful path to integration in Memphis, I hope that the Court recognizes the wisdom of taking action, as JCPS has, to achieve the goals set in motion by the Brown v. Board of Education decision more than a half century ago.

The Brown decision in 1954 famously put an end to the practice of “separate but equal” schooling. In addition to declaring state-imposed segregation unconstitutional, the Court recognized the importance of education in preparing the next generation of Americans. “Education,” Chief Justice Earl Warren wrote, “is the very foundation of good citizenship.” The Court recognized not only the necessity of outlawing legally-sanctioned segregation, but also the value of integrated schools in helping students adjust to the multiracial communities beyond the school’s walls.

Many cities, crippled by white flight from inner city school districts, have long since given up on integrated schools. Memphis is one such city. When Memphis was faced with court-ordered desegregation in the 1970s, the community essentially fractured into a black city school system, a white county school system, and a very white private school system. In the three decades since, those divisions have become seemingly permanent. Not only are the students largely separated by race, but, as is the case across the country, schools with the highest concentrations of minority students tend to perform the most poorly.

In Jefferson County, however, the community has embraced the values the Supreme Court identified in Brown. Since 1984, when JCPS began tinkering with its own court-ordered desegregation decree in order to make the schools more attractive to more families, enrollment – but more impressively, white enrollment – stabilized.

When the desegregation decree was lifted in 2000, rather than allowing its schools to resegregate as occurred elsewhere, JCPS enacted the student assignment plan that is the subject of the lawsuit to be heard today. The stated goals of the plan are to provide a competitive and attractive public school system, to maintain community support for JCPS, and to prepare students for life in a democratic and racially diverse society. The courts below found the plan constitutionally acceptable, holding that the JCPS policy of integrated schools is “both important and valid.”

Social science has shown just how important integrated schools can be to communities and, more importantly, to students. Integrated schools have been shown to produce increased levels of tolerance among students of all races. Surveys of Jefferson County students have shown high levels of tolerance – more than 92% of students reported that they were “comfortable” or “very comfortable” working with students from different racial and ethnic backgrounds.

In addition, African American students tend to perform better and attain better educational outcomes coming from integrated schools. These benefits are especially pronounced in systems, such as JCPS, where integration is voluntary and begins at an early age. Indeed, the black-white achievement gap is shrinking in Jefferson County even as it persists elsewhere.

Many other cities, including my home town of Memphis, have proven unable to meet the aspirations of Brown. In contrast, Jefferson County keeps trying. With its student assignment plan and its continued commitment to integration, Jefferson County has sought to create a system that is largely integrated and equal, while other cities have regressed to a state of separate and unequal. The Supreme Court has the opportunity to embrace, as it did fifty years ago, the ideals embodied by the JCPS plan. For the sake of Jefferson County and its students, we should all hope it does.

Lessons Unlearned

As the Supreme Court concluded its term, it issued a sweeping rebuke of the Bush administration's approach to the treatment of detainees at Guantanamo Bay. The decision, Hamdan v. Rumsfeld, invalidated the military tribunals the Administration had employed to try Guantanamo detainees -- tribunals that had severely limited the legal rights of detainees, including the right to be charged in a timely manner, the right to a lawyer, and the right to see the evidence against them prior to trial.

In response to the decision, the Bush Administration seemed to reverse several years of policy and accept that the protections of the Geneva Conventions must apply to detainees held in the war on terror. This apparent reversal was celebrated as a long-awaited awakening to reality for the Bush administration, who has sought extensive executive authority in prosecuting the war on terror, including the use of controversial interrogation techniques, wiretapping and surveillance plans, and detainee procedures.

The long-awaited awakening, however, was short-lived.

This week, the White House put increasing pressure on members of Congress to recreate the lawlessness at Guantanamo by passing legislation that would limit the rights granted to detainees. Administration lawyers told Congress that the most desirable solution would be for Congress to pass a law approving the very tribunals that the Supreme Court had said the President could not establish on his own.

Now that's the Administration we know and love.

Meanwhile, continuing its attempts to fill the courts with those who agree with its broad interpretation of executive power, the Administration is still backing the stalled nomination of William Haynes, to fill a vacancy on the Fourth Circuit Court of Appeals. As general counsel for the Defense Department, Mr. Haynes oversaw a policy memo that secretly authorized harsh treatment, even torture, for detainees at Guantanamo Bay. The Administration has since disavowed the memo and Mr. Haynes himself says he's "glad it's no longer on the books," but his participation in drafting and implementing such a controversial policy was enough for 20 retired military officers to send a letter to the Judiciary Committee expressing deep concerns over his nomination.

The letter speaks for itself: "What compels us to take this unusual step is our profound concern about the role Mr. Haynes played in establishing over the objections of uniformed military lawyers detention and interrogation policies in Iraq, Afghanistan, and Guantanamo which led not only to the abuse of detainees in U.S. custody but to a dangerous abrogation of the militarys long-standing commitment to the rule of law."

Rather than recognizing the danger of a policy Mr. Haynes helped establish policies the Administration has since disavowed the Administration continues to press for Mr. Haynes to be given a lifetime judicial appointment on a very important court where he can presumably sign off on all executive attempts to operate without regard to the law.

This is, of course, perfectly consistent with the Administration's stubborn refusal to admit mistakes or compromise on matters of executive authority and detainee treatment. Only with incredible reluctance has the Administration taken even the smallest steps back from its assertion that in the war on terror, the President can do as he pleases without concern for the rule of law.

However, as Justice Stevens wrote in the recent Guantanamo case, "The executive is bound to comply with the rule of law that prevails in this jurisdiction." We're still waiting on the current executive's acceptance of this reality.

Sit Down if You're Blocking the Vote

In 1965, Lyndon Johnson formed an alliance with Dr. Martin Luther King, Jr., to craft and pass the Voting Rights Act. Developed in response to endless hurdles being thrown up to keep African Americans from registering to vote or voting, the Act established a nationwide prohibition against discrimination in voting. The necessity of the law despite the Fifteenth Amendment's guarantee of the right to vote to all citizens, adopted nearly a century before, is a testament to the long and largely successful history of voting discrimination in the United States.

The Voting Rights Act was one of the most important pieces of legislation enacted during Johnson's presidency, but it was also political suicide. Knowing that support for the Act would hand the South to the Republican party, Johnson forged ahead anyway. Three years later, he stunningly withdrew from the presidential race and retired.

Voting remains a critical issue in America today. The last two presidential elections confirmed the importance of every single vote in determining the leadership and direction of this country. Yet, despite this importance (or perhaps because of it), lawmakers continue to take steps aimed at restricting the ability of Americans to vote, even threatening the future of the Voting Rights Act itself.

Although many portions of the Act are permanent law, other sections must be renewed from time to time. Several important sections are set to expire in 2007, including the requirement that states get clearance from the Justice Department before making changes in their voting procedures, such as redistricting, that could affect minority voters. Affirming the importance of these procedures to protecting voting rights, a bipartisan consensus in Congress had agreed to renew the provisions this summer. It was the type of broad support such an important law deserved. However, the expected vote was cancelled last week after several southern Republicans complained that the law unfairly targeted the South. Now, it is unknown when Congress will take up the issue or whether the Act will be renewed at all over these lawmakers' objections.

The recent efforts by lawmakers to delay renewal of the Voting Rights Act are the kind of partisan politics Lyndon Johnson, a Southerner himself, rose above in initially passing the bill. Unfortunately, efforts to delay renewal are part of a nationwide trend toward making voting more difficult for more people. According to the Brennan Center for Justice at NYU School of Law, several states including, of course, Florida and Ohio have recently passed restrictions on voter registration drives despite the fact that such drives have no correlation with voter fraud. These drives simply increase the numbers of registered voters and, consequently, the number of Americans who vote. Such efforts should be encouraged rather than restricted.

Meanwhile, the Supreme Court produced a complicated decision on Wednesday regarding the recent redistricting effort in Texas. On one hand, the Court reaffirmed the continued need for provisions in the Voting Rights Act like those the rebelling lawmakers complain of, ruling that a redrawn district in southwest Texas unfairly diluted the votes of Latino voters. The Court ordered a new district drawn that would be more consistent with the tenets of the Voting Rights Act. However, the Court took no action to undo the highly-partisan redistricting that resulted in a net gain of four Republican seats in the Texas legislature, concluding that such gerrymandering of districts by party was constitutional.

The case in Texas is a mixed result that vividly illustrates both the continued necessity for protections like those found in the Voting Rights Act and the kinds of ways lawmakers continue to manipulate the election process.

In 2006, we look back at efforts such as poll taxes and literacy tests as blatant discrimination that ought to be condemned. Yet four decades after passage of the Voting Rights Act, lawmakers continue trying to manipulate the election process wherever they can find an opportunity, whether by campaign finance regulations, gerrymandered districts, restriction of voter registration drives, efforts to prevent ballots being available in foreign languages, expensive voter identification requirements, or even failing to renew some of the most important provisions of the legislation most useful in protecting Americans' right to vote. Such efforts taint our government, our elections, and our society and are no more acceptable today than they were in 1965.

Supreme Court Shift?

In response to patterns leading to the rapid resegregation of public schools in cities across the country, many local school boards have enacted voluntary plans meant to help maintain diversity in their schools. Somewhat ironically, these plans have spawned lawsuits nearly identical to the cases brought in the 1950s and 60s by African American students seeking admission to schools racially segregated by law. Both sets of cases claim that making school assignments based on race violates the equal protection clause in the Constitution. The difference is that now the plaintiffs are white.

This week, the Supreme Court agreed to hear cases brought by white students in Louisville and Seattle who claim that policies in those cities unlawfully denied them admission to certain schools based on their race. Both plans were judged constitutionally permissible by the court below, but now the Supreme Court will get the final say.

Neither Seattle's nor Louisville's plan uses race as the only factor in making school assignments, but rather as one among many. In Louisville, parents are able to freely choose their children's schools so long as each school in the district maintains a minority enrollment between 15 and 50 percent. In Seattle, the plan requires school authorities to take a student's race into account as a "tiebreaker" only if that student is applying to a high school that already deviates by more than 15 percent from Seattle's systemwide racial balance. The most important thing to know is that both plans are voluntary -- not imposed by a court order -- and enacted for non-discriminatory purposes -- these districts have judged that it is in the best interest of all students to have schools that more accurately reflect the demographics of the broader communities the students will be a part of after graduation.

The Supreme Court's agreement to hear the cases was quite a surprise. In 2003, the Court ruled on similar issues regarding the use of race in admissions policies at the University of Michigan law school. In that 5-4 decision, written by now-retired Justice Sandra Day O'Connor, the Court upheld the law school's use of race as one factor in admitting students, though it warned that the days when such affirmative action would be permissible were not without limit. In the grade school context, the Court refused to hear a case from Lynn, Massachusetts, identical to that of Louisville and Seattle as recently as December. Why the shift?

The answer, of course, is that while the issues have not changed, the Court itself has. These cases mark the first opportunity for the court of Chief Justice John Roberts to define itself on such a big social issue. Whether the loss of the difference-splitting Justice O'Connor and her replacement with conservative jurist Justice Samuel Alito will result in a reversal on the affirmative action front remains to be seen. Justice O'Connor was still on the bench when the Court declined hearing the Lynn case.

Regardless of the outcome, however, the ideological lines in these cases reflect the enormous shift in the role of the equal protection clause in civil rights jurisprudence since the days when the first desegregation lawsuits were filed. Specifically, the idea of local control of schools has switched sides. During desegregation, conservative scholars, lawyers, and judges derided efforts by courts to tell local school authorities how to run their schools. Local control, it was argued, was a necessary characteristic of effective school administration. Now, conservatives find themselves looking to the courts for help, seeking court-ordered school admission for white students rather than allowing plans enacted by local authorities to stand. Meanwhile, liberals who once pushed for a broad and strong equal protection clause that could override local school decisions that violated it are stuck arguing for its limitation while insisting, as the conservatives once did, on leaving local school decisions to local authorities. How times have changed.

The outcome of these cases, expected to be heard late in the fall, will determine whether public schools across the country will be able to take measures meant to ensure diversity in their classrooms or whether the return to segregated schools, albeit de facto rather than de jure, will be accelerated. It would be unfortunate if after a half-century attempting to integrate public schools, we ended up right back where we started.

Supreme Court Notebook

When I began this column project, I promised to review interesting court cases to make complex decisions more understandable. When the Supreme Court this week issued its most interesting decision of the John Roberts era, I found my first opportunity.

If you’ve already heard about this case, you probably know it as the case that upheld Oregon’s assisted suicide law. The case, however, was not really about assisted suicide. Instead, the Court confronted whether the Justice Department had the right to unilaterally revoke licenses of doctors who had prescribed lethal doses of medicine under the Oregon law. The case was more about federal power than assisted suicide.

The Facts: In 1994, Oregon voters enacted the Death with Dignity Act, a highly-regulated scheme allowing terminally ill patients to request lethal doses of medication in extremely limited circumstances. After several attempts by the federal government to curtail the law failed to pass in Congress, then-Attorney General John Ashcroft announced in 2001 his intent to revoke the licenses of any doctor proscribing medication used in assisted suicide. Oregon immediately filed this suit.

The Ruling: Noting that Ashcroft had made his decision “without consulting Oregon or apparently anyone outside the Justice Department,” the Court voted 6-3 to prevent the doctors’ licenses from being revoked. Justice Kennedy wrote the majority decision and was apparently disturbed that an Attorney General with no medical expertise had taken it upon himself to determine for the nation what was to be considered a legitimate medical purpose. At his whim, Ashcroft had declared a state-authorized medical procedure to be a federal offense. Justice Kennedy was unwilling to grant the Attorney General such extraordinary authority.

Why It’s Interesting: This case is a gem for a host of reasons. First, the way the justices voted is quite quirky. The more liberal justices, who generally argue for the federal government’s power to regulate, sided with Oregon, while the conservative justices, usually the champions of states’ rights, sided with the federal government. Justice Scalia, who generally abhors any effort by the federal government to usurp the power of the states, wrote a dissent based primarily on his personal conclusion that assisted suicide was not a legitimate medical practice. In other words, he agreed with Ashcroft’s judgment on the issue and voted accordingly. This is a far cry from the usual Scalia argument that Supreme Court decisions should be rooted in strict interpretation of the Constitution, not the opinions of the individual justices. The hypocrisy exhibited by both the liberal and conservative justices in arriving at their preferred result further undermines the ideal of an impartial, apolitical court.

The result is all the more quirky because only seven months ago, the Supreme Court considered a related issue – could the Justice Department prosecute those who grew medical marijuana consistent with California law – and came to the exact opposite conclusion. The sides were less clear cut along liberal-conservative lines, but a 6-3 Court ruled then that the Justice Department did have that power. Justice Thomas, the only justice on the losing side in both cases, wrote that this flip flop was “perplexing to say the least.” (Pay attention because I will not write the following sentence very often) Justice Thomas is right. Taken together, the California and Oregon cases provide little guidance on the reach of the federal government in regulating controversial drug treatments.

Perhaps the most significant take home point from this case, however, is what it says about the likely future of the Supreme Court. Chief Justice Roberts joined Justice Scalia’s dissent, setting off alarms for liberals who hoped he would prove more moderate than Scalia. With the apparently imminent addition of Samuel Alito to the Court, should Roberts regularly side with Scalia, Scalia may have a solid block of four votes for the foreseeable future. In addition, Alito’s addition and Justice O’Connor’s departure mean that Justice Kennedy, the author of this opinion will become the Court’s all-important swing vote. Thus, this decision could be a preview of the Court to come. Those concerned that Kennedy will prove less moderate than O’Connor may be comforted by the fact that Scalia’s dissent was characteristically condescending and dismissive of Kennedy’s balance-striking opinion. Such tactics pushed O’Connor away from the arch-conservative camp. Whether they will do the same with Justice Kennedy, the new swing vote, remains to be seen.

Truths About Guantanamo

The Adminstration this week unveiled its latest attempt to avoid all legal oversight of its activities at the military prison at Guantanamo Bay, Cuba. The Justice Department declared that it was seeking to have all suits brought by Guantanamo detainees dismissed from the federal courts. The federal courts should reject the Justice Department’s action and remind the Administration that it is not beyond the bounds of law.

Those detained at Guantanamo were swept up in broad raids in Afghanistan and Pakistan. There are some very bad guys there. But there are also some guys imprisoned by mistake. There are even some who remain imprisoned although the military has conclusively cleared them as non-combatants. The federal court challenges the Administration seeks to dismiss have been an effective way of separating those who should be imprisoned from those who should not. These suits, it should be noted, do not demand release of the prisoners. Instead, they ask the Administration to charge the detainees with offenses rather than imprison them indefinitely without ever explaining why. Over half of the current detainees have challenged their imprisonment in this way, though if the Adminsitration gets its wish, each of these cases will be thrown out.

Attempts to avoid legal review at Guantanamo began at the very inception of the facility, when, in 2002, Guantanamo Bay was transformed from a naval base to a sprawling military prison for individuals captured in the war on terror. The idea was that because Guantanamo was not American soil, the Administration need not obey American detention laws for those detained there. The Supreme Court rejected this conclusion, declaring that Guantanamo inmates could use the federal courts to challenge their indefinite detentions without charge.

Having lost the initial fight at the Supreme Court, the Administration renewed its attempts to shake off pesky legal oversight with its action this week. In seeking to have the cases dismissed, the Justice Department is relying on a vague provision in a military bill passed late last year that allegedly eliminates federal court jurisdiction over Guantanamo cases. It is far from clear, however, that is what Congress intended.

Senator Carl Levin, a co-sponsor of the provision, claims that the provision was meant to limit only future Guantanamo challenges without affecting cases currently pending. Levin said he rebuffed at least three administration attempts to make the law retroactive while the legislation was being written. “The Administration is now seeking to end-run the legislative process and achieve a result through the courts that it was unable to obtain in Congress,” Levin asserted.

The Administration’s action is simply the latest in a consistent stream of attempts to enlarge executive power and avoid oversight of executive actions – at Guantanamo and elsewhere. Whether it be domestic wiretapping or the Geneva conventions, this Administration has consistently considered itself above the law. Earlier this week, the President declared as he signed the recently-passed ban on torture by American intelligence personnel that he would interpret those restrictions in the context of his broader constitutional powers as commander in chief. In other words, President Bush will enforce the ban so long as he wants to. If the President can simply declare what a law means, then what is the point of writing and debating the law in the first place?

The Administration’s brazen attitude toward review of its activities reminds me of another famous, though fictional, Guantanamo character. In the film “A Few Good Men,” Jack Nicholson plays the above-the-law colonel in command of the Guantanamo naval base. When pressed for a description of his involvement in a hazing incident that led to a soldier’s accidental death, Nicholson feels no need to explain himself. Pressed by a pesky Navy lawyer, Tom Cruise, for the truth, Nicholson famously belts, “You can’t handle the truth!” So it is with this Administration. The Bush Administration feels no need to explain the prolonged detention without charge of hundreds of individuals at Guantanamo Bay. That, my friends, is something we truly can’t handle.

Raising Questions About Don't Ask

One of the more frustrating things about being a lawyer is when a very interesting case completely overlooks the larger context in which it is set. Such was the case this week when the Supreme Court heard arguments in a case over whether the government can legally cut federal funding to law schools who have banned military recruiters from campus on the basis that the military discriminates against gay and lesbian students.

The case stems from the Solomon Amendment, a statute that allows the government to restrict federal funding to aid recipients who do not allow equal access to federal recruiters, including the military. In the past, law schools banned military recruiters because the schools do not allow any recruiters who discriminate and because the military’s Don’t Ask, Don’t Tell policy does discriminate against gay and lesbian students. The most recent change to the Solomon Amendment, providing that such action by one part of a university could put in jeopardy federal funding for the entire university, was intended to put the squeeze on the law schools. It worked. Facing a loss of billions of dollars in funding for research and financial aid, universities forced their law schools to allow military recruiters on campus. Unhappy, a group of law schools sued.

The Court of Appeals found for the law schools, concluding that enforcement of the Solomon Amendment forced schools to propagate the military’s message of discrimination, thus violating the law schools’ collective right to free speech. The Supreme Court, however, appears to see things differently. In oral arguments on Tuesday, the justices seemed sympathetic to the government’s claim that they desire equal access, not any endorsement of military policies. Chief Justice John Roberts summed up the government position, “If you want our money, you have to let our recruiters on campus.” The schools could, of course, refuse the federal funding and continue to bar military recruiters, but a stand on this principle, the schools have determined, is not worth the large sums they would forfeit as a result.

Although this case may be interesting to constitutional law scholars, the debate about military access and free speech is really a legalistic offshoot of a separate and more interesting debate about the wisdom of continuing to ban gays from the military. The case provides an opportunity to reevaluate the root of this issue. Since 1993, the military has operated under the supremely silly Don’t Ask, Don’t Tell policy in which gay Americans could serve in the military so long as they do not engage in “homosexual conduct” – a category that includes admitting you are gay. If the military determined that this discriminatory policy were no longer useful, the debate about access to law schools would be rendered moot.

The military has been resistant to admitting gays in the past and remains so today. There is concern that gay soldiers could disrupt a military unit’s cohesion by creating tensions among soldiers and eroding morale. However, in the dozen years since enactment of the Don’t Ask, Don’t Tell policy, public acceptance of homosexuality has come a long way. In those same dozen years, more than 10,000 gay servicemembers have been discharged for being gay. At a time when troop recruitment is slumping and many of our soldiers are facing the prospect of multiple return trips to Iraq, the military may be more open to allowing all willing Americans, regardless of sexuality, the opportunity to serve.

On this issue, the United States is out of step with the majority of NATO militaries as well as that of Israel. In 1999, the United Kingdom lifted a ban on homosexuals and allowed gays to serve. The reaction to lifting the ban has been “less dramatic than expected,” according to Michael Codner of the Royal United Services Institute, a research group with close ties to the British military. Codner did acknowledge that acceptance varied by field: “If you’re a paratrooper and you’re gay, you probably keep your head down, whereas in other units, such as the medical services, it’s less important.”

The American policy has led to the discharge of 54 Arabic translators, an area of desperate need for the military, and an area where acceptance of gay service members would likely be high. Lt. Col. Allen Bishop, a West Point professor who has argued for the law’s repeal, wrote “The war in Iraq highlights the shortsightedness of discharging Arabic linguists who happen to be gay.”

To say that the presence of homosexuals in the military would erode morale underestimates the number of service members who would accept a gay peer and caters to the prejudices of the minority who would not. The military has always been a leader in providing opportunities to a diverse group of Americans. It is time not only to think about whether the military should be allowed to demand access to law schools, but more importantly, to rethink the wisdom of continuing to exclude gay Americans from serving their country.

Activism Shmactivism

Hardly had the words “Samuel Alito” left President Bush’s lips before conservatives nationwide started gushing about Judge Alito’s judicial philosophy. President Bush insisted that Judge Alito had “a deep understanding of the proper role of judges in our society. He understands that judges are to interpret laws, not to impose their preferences or priorities on the people.” Senate Majority Leader Bill Frist lauded Judge Alito’s judicial restraint and his “respect for the limited role of the judiciary to interpret the law and not legislate from the bench,” a compliment echoed by Roberta Combs, president of the Christian Coalition of America, who called Judge Alito a “strict constructioninst who will not legislate from the bench.”

Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.

The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.

To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.

Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.

Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.

What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.

Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.