"A Proper Objective": Constitutional Commitment and Educational Opportunity after Bolling v. Sharpe and Parents Involved in Community Schools

Abstract

“Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.” (Bolling v. Sharpe, 347 U.S. 497, 500 (1954).) Four years ago, the United States Supreme Court, in a case called Parents Involved in Community Schools v. Seattle School District No.1 rejected as unconstitutional two school district plans that used race in student assignments in pursuit of racially integrated public schools. (See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (plurality opinion).) Ever since, school districts and communities seeking to promote diversity within public schools have been treading treacherous water. The Court rejected two plans but did not clearly bar race-conscious means in all circumstances. Justice Anthony Kennedy wrote the controlling opinion, as he supplied the fifth vote crucial to striking down the plans in Seattle and Louisville, but he also joined the otherwise dissenting Justices in concluding that achieving the educational benefits of diversity remains a compelling interest that school districts may pursue. The Department of Justice is working hard on a guide to help school systems sort through the issue. I will use this subject matter to comment on how we arrived at this moment, to suggest steps addressing the issue going forward, and to reflect on the nature of our Constitution.