Person:

Minow, Martha

The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . . — Joseph Story (1833).
That the Court was sharply divided was not a surprise. The contrasting briefs — including a record 136 from amici — laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world. The unexpected further, controlling opinion authored by Chief Justice Roberts was historic not only in its bottom line (upholding most of the law but under the federal taxing power, after finding no power under the Commerce Clause), but also in its staking out a third position, outside the two warring camps. Leaving to others speculative debate about the motivations and intentions of Chief Justice Roberts, this Comment argues that this third opinion transcended the polarized political debates surrounding the legal challenge to President Barack Obama’s signature domestic policy initiative through analytical convergence, not political compromise. Although pundits called it a compromise, something else was at work. Here, Chief Justice Roberts followed Justice Joseph Story’s view of “reasonable interpretation.” Seeing the decision as one of law, not just of politics, demonstrates the power of arguments and explanations rather than sheer outcomes or advantage. The reasons and interpretations exchanged in this case — not just the votes and the result — amplify the Supreme Court as a symbol of the rule of law. And, because it was a legal ruling, there will be repercussions for legal doctrines and for the actual scope of governmental powers for years to come. Or so I will argue here.

“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.

School choice policies, which allow parents to select among a range of options to satisfy compulsory schooling for their children, have arisen from five periods of political and legal struggle. This Feature considers the shape of school choice that emerged in the 1920s education fight over Americanization of immigrants; the freedom-of-choice plans used to avoid court-ordered school desegregation in the 1950s and 1960s; magnet schools used to promote school desegregation in the 1970s until they were halted by the Supreme Court; constitutional campaigns for vouchers to pay for religious schooling; and current experiments with charter schools and other alternatives, including special-identity schools. The idea of school choice appeals to individual freedom, market competition, religious freedom, multiculturalism, and ideological neutrality. School choice programs draw new talent into schooling and offer new avenues for social integration but only if that goal becomes an explicit public commitment, shaping available choices. Otherwise, school choice can enable new forms of social separation and obscure the absence of equal opportunities for all students.

How admirable it is to use words to resolve conflicts between people. Using words rather than fists or bombs is valuable not only because it avoids physical destruction but also because it lays the predicate for more peaceable exchange, because it reflects and engenders respect, and because it creates the possibility of persuasion or for mutual agreement to coexist. Ronald Dworkin’s extraordinary career displays possible heights that the use of words to address human conflict can reach. In both form and substance, Dworkin’s work manifests profound respect for human beings and the dignity of each distinct person. It is with the respect he has both modeled and so ably earned that we offer these comments in rather diametric opposition to his most recent sterling accomplishment. For while Dworkin celebrates the “hedgehog” of unity of truth, we find the messier variety of plural truths more in keeping with lived experience, more attuned to the transparency and inclusiveness of debates over the good and the right, and more likely to reach the variety of human beings that such debates are meant to affect. Here, then, we suggest that values are plural, not unitary, and are better seen that way than sanded and recast to appear singular and unitary. It is not only possible, but also familiar and rewarding, to work through real problems with direct attention to plural values. At stake in these seemingly abstract and methodological differences are not only aesthetic tastes but also forms of justification and forms of human engagement through which real people can work through real problems.

In Integrating Accommodation, Elizabeth Emens commendably scrutinizes what could be called the "positive externalities" of disability accommodation and sharpens the policy choices that their recognition should present. With useful analytic tools, Emens effectively outlines emerging choices that pertain to 1) how much value should be given to the benefits to others from the accommodations; 2) what relative priority should be given to others compared with the initial disabled claimant; and 3) what specific changes in regulatory regimes can and should be pursued to enhance the positive externalities without raising too many costs, whether in terms of costs or competing values. I look forward to the scholarly and policy de-bates that Integrating Accommodation will launch, as well as empirical research about costs and benefits that it should stimulate.

This Response explores how an important source of Emens' analysis also gives rise to a potential obstacle to its implementation. For here, as in her other work, Emens sheds light on disability law by opening for examination the assumption that the "person with a disability" is the only one affected by it or by responses to it. The power of her analysis in Integrating Accommodation depends on what may be an obstacle to acting upon it. Emens shows how the typical legal preoccupation with each individual as distinctive, alone, and unique produces pervasive inattention to relational, iterative, and collective features of social experience. Increased attention to this conceptual issue may be necessary if the kinds of considerations Emens advocates are to appeal to judges, legislators, administrators, employers, school officials, journalists, and even law professors.

The occasion of the first Martin Luther King Jr. Day Speech at Lewis and Clark Law School, following on the heels of the Supreme Court’s rejection of two voluntary racial school integration plans, warrants revisiting the conception of equality that called for school integration, the prospects for equal opportunity without education, and remaining arguments for integration. “Integration” here means more than terminating legally-enforced segregation, and more than sheer mixing of people with different races and identities in the same setting. As Dr. King described it, integration involves the creation of a community of relationships among people who view one another as valuable, who take pride in one another’s contributions, and who know that commonalities and synergies outweigh any extra efforts that bridging differences may require. Before the disillusionment accompanying the apparent failure of judicially-mandated school integration, integration was inseparable from access to opportunity as a goal of civil rights reformers from the nineteenth century through the middle of the twentieth. W.E.B. Du Bois and Martin Luther King, Jr. separately emphasized that racially separate instruction by teachers who believe in their students’ capacities would be better than racially-mixed instruction by teachers who disparaged African-American children—but integration would be still better. As even the good arguments for socioeconomic integration reveal, failure to pursue racial integration—including efforts to create truly inclusive communities of mutual respect—can recreate racial segregation through tracking, special education assignments, and students’ own divisions in lunch tables and cliques. Racial integration is informed by demographic changes; making this a multicultural and multi-racial society remains a distinctive goal apart from other efforts to ensure equal educational opportunities. Justice Kennedy’s separate opinion in Parents Involved in Community Schools v. Seattle School District No. 1 along with the four dissenters create a fragile majority that would permit school systems and housing developers to build local schools with the aim of encouraging racial integration, to develop programs designed to attract racially diverse groups of students, and to hold meetings and recruitment efforts to attract diverse groups of students and teachers. Contrary to the Court’s majority opinion, pretending to have achieved color-blind as well as open opportunity—when we have not—disables individuals and communities from understanding what is going on and from becoming equipped to deal with it. In addition to the strategies for integration left open, families and students can choose integrated schools by their residential choices and by making their own lives look like the mass entertainment and ads celebrating integration.

How much room should a secular democracy ensure for religious and ethnic subgroups - and when it does so, is this a matter of normative principle or instead a compromise of principles? A prime context for this question arises with conflicts between women's equality advanced by national constitutions and international human rights, on the one hand, and state deference to traditional cultural and religious norms, on the other. Informed by Carol Weisbrod's scholarship, this essay argues that accommodations for minority groups by liberal democracies do not require a compromise when convergence between values can be achieved. When convergence cannot be achieved, compromise is not always wrong and can on occasion be justified to pursue social stability and to express competing principles embraced within the liberal democracy, but compromise cannot be justified if it involves capitulation to threats. Neither compromise nor convergence can resolve deep differences over whether the group or the individual should be the focus for legal protection or whether rights, duties, or compassion should be the organizing basis for law. Governance devices, including decentralization in the form of federalism and private ordering through corporations, fraternal groups, contracts, and families, help liberal societies manage potential conflicts between minority group practices and mainstream individual rights, and also support the kind of pluralism that can enrich the entire society.