Tuesday, September 30, 2008

Entin on Parents Involved and the Meaning of Brown

Jonathan L. Entin, Case Western Reserve University, has a new essay, Parents Involved and the Meaning of Brown: An Old Debate Renewed. It will appear in a symposium issue of the Seattle University Law Review (2008). The first two paragraphs describe the essay more fully than its brief abstract:

The debate over the meaning of Brown v. Board of Education in Parents Involved in Community Schools v. Seattle School District No. 12 exemplifies the long-running disagreement over the meaning of racial discrimination under the Constitution. One approach, reflected in the Parents Involved majority opinion by Chief Justice Roberts and in the concurring opinion by Justice Thomas, endorses colorblindness: the view that race is virtually always and everywhere irrelevant to public policy. Another approach, reflected in the dissenting opinions of Justices Stevens and Breyer, appears to embrace anti-subordination: the view that promoting interracial association is desirable as a matter of principle because it seeks to overcome the stigma that has long attached to people of color in the United States.

This Article examines some of the jurisprudential roots of the racial discrimination debate, tracing the issue back to Brown and its immediate aftermath but finding the seeds of the disagreement in the ambiguities of the first Justice Harlan’s celebrated dissenting opinion in Plessy v. Ferguson. The tensions between the two approaches did not matter in Plessy because segregation was impermissible under either theory, but the two approaches pointed in opposite directions in Parents Involved. Part II offers an overview of the Seattle and Louisville policies that were struck down in Parents Involved. Part III examines the various opinions in Parents Involved to illuminate the basic theoretical differences that divided the Court. Part IV examines the iconic decision in Brown and explores the aftermath of that ruling as lower courts struggled to determine how to remedy unconstitutional school segregation with little guidance from the Supreme Court, which did not grapple with remedial complexities for more than a dozen years after handing down its landmark ruling. Finally, Part V examines the complexities of Justice Harlan’s Plessy dissent and how those complexities continue to reverberate in the contemporary debate about racial discrimination.

No comments:

Post a Comment