Friday, October 27, 2006

Meredith v. Jefferson County Board of Education
Gail Heriot

I'd like to thank the UCLA chapter of the American Constitution Society for inviting me to participate in their Supreme Court moot session on Tuesday.  It gave me the opportunity to bone up on the case of Meredith v. Jefferson County Board of Education, which will be argued before the Supreme Court in December.  No, I still haven't worked out in my own mind exactly how I think the case ought to be decided.  But I'm a lot closer than I was before the moot session, so I'm making progress.

I'd never done a Supreme Court moot session before this one (though I'm now scheduled to do another one in a few weeks).  Their purpose is to give an attorney who will be arguing before the Supreme Court an opportunity to rehearse before a "moot court"--preferably one composed of liberal and conservative legal experts who approximate the range of views the attorney will encounter before the real Court.  In this case, the attorney was Francis J. Mellen, Jr., who will be arguing Meredith v. Jefferson County Board of Education on behalf of the school board.  The members of the moot court were Professor Cheryl Harris, Dean Ken Starr, Professor Kimberly West-Faulcon, Michael Small and I.  ( I should add that, in addition to giving Mellin a chance to rehearse and refine his argument, the event also gave UCLA students a chance to hear an important Supreme Court oral argument before the Court gets to hear it. This was good, since Mellen did such an excellent job presenting his client's case that he didn't seem to need the rehearsal.)

I was intrigued by the title the ACS gave to the program: "Defending Brown:  Race Conscious Remedies in Education."  In some ways, it's the perfect title to describe the case as a whole.  Which party is defending Brown v. Board of Education is precisely the issue.  Is it the Jefferson County School Board, which assigns many of its students to schools on account of their race--making sure that at least 15% but no more than 50% of those at each school will be non-white?  Or is it Crystal Meredith, whose son was denied admission to the school of his choice because of his race?  Both sides firmly believe themselves to be on the side of the angels.   

After reading the briefs and hearing Mellen's argument, there are two things I am convinced the Meredith case isn't:

1.  This is not a "remediation" case in the tradition of Swan, Milliken, Jenkins, etc.  By that, I mean that it does not center on the governmental authority (judicial or otherwise) to remedy the past wrong of segregated schools.   Yes, Jefferson County (which is the county in which Louisville, Kentucky is located) did at one point operate separate schools for blacks and whites.  And yes, Jefferson County went through its court-ordered forced busing phase.  Indeed, court supervision of the Jefferson County schools officially lasted until 2000.  But in that year, the district court found that the school system had "eliminated the vestiges associated with the former policy of segregation and its pernicious effects." 

Whatever the ills of Jefferson County schools today, the court has found that they are not the proximate result of previously segregated schools.  Jefferson County School Board thus cannot claim that it is remedying its past wrong.  (Bear in mind that insofar as many neighborhoods in Jefferson County do not reflect the overall racial composition of the county, that is not a wrong committed by the Jefferson County School Board--or perhaps by anyone, but certainly not by the School Board.  It therefore does not give rise to any special powers of remediation that would not exist in the absence of a wrong.)

2.  This is not a "diversity" case in the tradition of Bakke or Grutter.  Even assuming that racial diversity serves the same purpose in the public schools as it was found to serve in Bakke at UC Davis Medical School and in Grutter at the Univerity of Michigan Law School, the Jefferson County schools haven't come close to complying with the requirements of strict scrutiny articulated in Grutter. 

Both Bakke and Grutter made it clear that, among other things, race must not be the only measure of diversity.  Students with other unusual characteristics must have a chance to be considered diverse too.  In Meredith, however, race is the only measure of diversity.  And it is the only factor that could prevent a Jefferson County student from getting an open seat at school of his choice (within his cluster).  The School Board doesn't distribute the children of missionaries throughout the system.  It don't care whether each school gets a tuba and a piccolo player for the school band or that talented athletes are distributed widely.  All it cares about is race.  Each school must have at least 15%, but no more than 50% non-whites.  That makes the Meredith case more like Gratz v. Bollinger (the case the University of Michigan lost) than like Grutter v. Bollinger (the case it won).  As a result, if the Supreme Court is to decide Meredith consistently with Grutter and Gratz, it would have to hold that the Jefferson County School Board's policy fails strict scrutiny, because (among other things) the policy is not narrowly tailored.

That doesn't mean that the Meredith case is a sure loser for the School Board (or even that I think that the case should be a loser for the School Board.)  Just because the Jefferson County School Board isn't authorized to act under the remediation line of cases or under the diversity line of cases, doesn't mean that its actions are in violation of the Constitution.  But this post is long enough now.  I will write this weekend about possible "third ways."

I don't think this case is easy by any means.

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Gail Heriot


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