How Now, Brown? Parents Involved in Community Schools and the Triumph of Color Blind Ideology

In the wake of the 1954 ruling in Brown vs. Board of Education and in the subsequent creation and later dismantling of mandatory integration plans, a question has remained unanswered: What can the government do when the last vestiges of state-sponsored segregation are erased (or have never existed) and schools nevertheless remain racially isolated because of housing patterns and societal discrimination? On Thursday, June 28, 2007 the United States Supreme Court said clearly what the government can’t do in Parents Involved in Community Schools v. Seattle School Dist. No. 1. There, in a 5-4 decision, the Court struck down voluntary integration plans in the public schools of Seattle, Washington and Louisville, Kentucky. Chief Justice John G. Roberts, Jr. wrote the majority opinion in the combined cases. On the two school plans, the majority found that the districts had "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."

This decision may be the death knell for the promises of Brown v. Board of Education. Brown has been hailed as a seminal event in American jurisprudential history. Numerous books, journal articles, and films have chronicled the case. The original case was brought by black parents in Topeka, Kansas to challenge the de jure racial segregation of schools that resulted in black children’s attendance at separate public schools. Brown is said to have settled the question of whether or not blacks and whites could receive an education integrated with or separate from each other, as Brown overturned the 1896 case of Plessy v. Ferguson, which established the doctrine of "separate but equal." However, in recent years, scholars have raised doubts as to whether the legacy of Brown is quite as rosy as first believed, and have chronicled the decisions narrowing its import and its impact. The decision in Parents Involved, if it didn’t kill what remained of the spirit of Brown, certainly seems to bring us much closer to the sad day of Brown’s complete demise.

What has perhaps most saddened me is the implicit assumption by the Court in Parents Involved that if blacks are racially segregated in their neighborhoods and ultimately in their schools in the absence of de jure segregation, it is because of the exercise of “private” decisions about where to live and attend school, and such choices cannot and should not be addressed by government. The reality is that housing "choice" may still be a long way off, even for financially able members of minority groups. For example, data compiled by the National Fair Housing Alliance indicates that racial “steering”—the practice by real estate professionals, sellers and other involved in real estate transactions of recommending or discouraging the purchase of homes or choice of school districts to potential home buyers based on their race or national origin—is alive and well. My own anecdotal experiences seem to support this conclusion. I've bought 6 properties in various states and towns in the course of my life, all in predominantly white neighborhoods. I've placed bids on several more. All of the properties were offered by real estate professionals who were highly experienced, well known and respected in local circles. I believe that I’ve experienced race-based discrimination in some aspect of the process in all but one of these transactions.

In my first transaction the selling agent told me that the sellers were “nervous” about taking my offer (why?) but it would allay their fears if I made a full priced offer and put over 30% down (huh?). In my next transaction the seller's agent told me that because of credit problems (What credit problems? She didn’t know me.) I had to have all cash to purchase the house (Whoever heard of that?), and she later refused to return calls placed by my agent. In another case the selling broker took my offer and sent it around to fellow agents in an effort to drum up competing bids while asking for extensions of time in which to accept my bid. Not surprisingly, I was ultimately outbid. I learned later through acquaintances of the sellers that they had no intention of considering my offer since they felt that my family didn’t “fit” into the neighborhood, but they were glad to get my offer in order to start the ball rolling (the house had sat with little activity for months.) I thus became an unwitting shill. In several cases the agents never conveyed my offer to the sellers and I was forced to contact the sellers and let them know about the offer I'd made. This doesn’t even begin to count the numerous times I appeared with my agent to view a property but was refused admission by a plainly visible seller who ignored the ringing doorbell or offered excuses to avoid a showing (“I know you have an appointment but this isn’t a good time,” “We’re not sure if we’re going to sell after all.”)

Gee, isn’t all of that stuff is illegal? Maybe. That’s the problem. There are in most places some combination of local, state and federal laws barring racial discrimination. There are also typically professional codes of conduct that hold real estate brokers and agents to certain standards. But trying to hold real estate professionals accountable for violating the law or professional standards (never mind holding the sellers accountable) in such cases is all too often a losing proposition. This is especially true in housing discrimination litigation, since there is a requirement of a clear showing of discriminatory intent. This means that an action which could somehow be construed as neutral on its face may not easily be the basis of liability. Given the time, money, headaches and heartaches of litigating, even a practicing lawyer or law professor may just move on to the next deal notwithstanding suspected racial discrimination.

The Chief Justice indicated in his oral announcement of the ruling that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Roberts wrote: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Seems like a no-brainer. If only it could work that way. Regrettably, the racial discrimination aimed at blacks and other racial minorities is often stealthy as well as stalwart. To assert that governmental use of race to remedy past and continuing discrimination against blacks and other racial minorities is the same as deeply entrenched, longstanding white racism seems a bizarre and disingenuous embrace of the color blind ideal. Such decisions, while purporting to disrupt racist practices, instead run the very real risk of legitimizing them. Perhaps we are doomed to return to the days before Brown.

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