Undoing Racism: The Supreme Court and the Ties that Bind
By Evan Roberts
...this verdict has the potential for wide-sweeping ramifications that could go beyond any one individual, group, school or community, to affect all peoples of the United States
Controversy and confusion were two obvious results stemming from the fallout of the June 2007 U.S. Supreme Court verdict that struck down student enrollment plans in Seattle, Washington and Louisville public schools.
The plans used a child's race as a tie-breaking factor in determining which schools they would attend. While the two cases in question directly affect the future plans of school boards across the country, the verdict may impact other segments of society as well, including the workplace, where diversity and inclusion have become strong values in many organizations.
In response to the verdict, many have come forward and offered an array of opinions, implications and potential solutions. Some, like Dr. R. Roosevelt Thomas, argue that a better understanding of what diversity entails, and an analysis of the past, present and future goals of the social justice movement, is needed in order to move forward.
Others, such as Melanie Harrington, feel that now is the time for great innovation and creative problem-solving in the diversity field in order to circumvent the possible negative outcomes of the verdict.
Legal professionals like Michael Porter believe that the law remains flexible enough to allow for other programs designed to help end racial prejudice.
Regardless of the personal viewpoints, one underlying theme persists: that this verdict has the potential for wide-sweeping ramifications that could go beyond any one individual, group, school or community, to affect all peoples of the United States.
The Court weighs in
"this will be a decision that the courts will come to regret."
The complicated decision is such that while the 5-4 majority verdict did end the plans in Seattle and Louisville, race was not completely eliminated as a potential component when determining school placement. While Chief Justice Roberts wrote for the majority, and was joined by Justices Thomas, Alito and Scalia, Justice Kennedy opted to write his own majority-side opinion, explaining that his primary contention with the school district plans were that they were not "narrowly tailored" enough to his interpretation of constitutional law.
Ostensibly giving the case a 4-4-1 outcome, Justice Kennedy's opinion means that a student's race has not been completely outlawed for consideration in future enrollment plans. What his written opinion will mean in reality is yet to be determined.
In light of the ruling, the more liberal Justices cried foul, with Justice Breyer bluntly proclaiming that "this will be a decision that the courts will come to regret." Yet, while many diversity consultants and Civil Rights advocates share Justice Breyer's concern, some are not so quick to throw in the towel. On the contrary, they believe the verdict creates an important opportunity for furthering the understanding of what diversity truly means.
Integration, pluralism, or diversity?
"Pluralism does not lead to racial integration... pluralism is that we're all together in the schools, but races are in camps"
Dr. R. Roosevelt Thomas, considered one of the chief architects of the diversity management field, is one individual who believes a closer examination of the case is needed. Dr. Thomas is CEO of Roosevelt Thomas Consulting and Training and Senior Research Fellow for the American Institute of Managing Diversity.
Thomas feels that while the majority decision does give anti-affirmative action groups a strong point of contention in future legal debates, the current legality of the program remains unaffected by this outcome, and that thanks to Kennedy's opinion, supporters of affirmative action will retain at least one line of defense against potential challenges.
Thomas is also of the opinion that now is the time to make important distinctions between racial pluralism - what the courts have effectively undermined - and racial integration, supposed as the goal of the school districts. Thomas explains that pluralism implies a notable existence of races in one entity, while integration is a different concept that implies a sense of unity and inclusion for all the races. "Pluralism does not lead to racial integration... pluralism is that we're all together in the schools, but races are in camps," he maintains.
Racial pluralism, as pointed out by Thomas, is one of the original and persisting goals of the Civil Rights Movement, which to various extents has been achieved through legal means. Beyond pluralism lies the goal of integration and a pervading sense among many social justice advocates that our country will improve once this occurs. With races integrated, and not just existing in a pluralistic environment, diversity could then be freely championed without consequence.
But to Thomas, diversity already exists in schools, and this case, including the subsequent verbal fallouts from both those in favor and against the verdict, provide a clear example of how the word "diversity" is being used incorrectly. Thomas explains, "In my view, there is no inherent good or bad in diversity, it's in how you manage it where you get the good, or the benefit. We don't use the word 'pluralism;' if we would use this word [instead of diversity], it would help [make things clearer]."
Thomas is adamant in his view that diversity is not simply a race-based issue. Diversity carries a more inclusive connotation. Two students possessing different ideas or thought patterns, for example, is a component of diversity; contrarily, to Thomas, two students of different races who hold the same ideas do not illustrate diversity if they act and think the same.
Re-examining the concepts
"This is a time for great thinking and innovation in the diversity field..."
As to whether or not the June 2007 verdict would result in a greater pursuit for legal remedies to further the unfinished agenda of the Civil Rights Movement, whether they are appeals or entirely new cases, Melanie Harrington, the Executive Director of the American Institute for Managing Diversity, Inc., sees this as unlikely.
"The real problem with [appeals] is that not all schools have the money to mount this type of litigation. It's expensive. I think that government agencies will try to avoid being sued [as well]," says Harrington.
Like Thomas, Harrington believes that this ruling provides an opportunity to re-examine what diversity means and how it can be managed. She believes a better understanding of "all the elements of the diversity mixture," as she puts it, and not simply a person's race, will lead to new strategies, processes, structures and potential resources for any student in a given community.
"This is a time for great thinking and innovation in the diversity field," Harrington suggests.
In regard to how this case might transcend the field of public education into other sectors of society, Harrington remains optimistic as to the eventual effects, but recognizes that the ruling does indicate potential problems for different groups of people, ranging from poor, small African American communities to a broad, all-encompassing notion of the entire country.
"I think what you don't address in early childhood education comes back to hurt you later," states Harrington
When asked about how this case could affect anti-affirmative action supporters, Harrington indicated that they should be pleased, and bringing up the court's verdict may advance their own argument in the future.
Doing the right thing
"Diversity for public employers has not been tested in the Supreme Court..."
Michael Porter, an attorney with the Portland, Oregon-based Miller Nash law firm, agreed with Thomas and Harrington's sentiment that opponents of affirmative action should be pleased, but disagreed as to the extent of the power it would give such groups.
"It's probably what they expected, [but] I don't know if it really gives anti-affirmative action groups much [support]. Maybe they are using the decision, and effectively somewhere, but to my knowledge they are not carefully reading the opinions," Porter explains.
Also, like Harrington, Porter does not foresee much, if any, future litigation following from this ruling, citing the outlandish attorney fees that have strapped the school districts for cash. Furthermore, Porter adds, "To go up against the court of appeals... it's going to be expensive."
With little hope in the way of new legal solutions in Porter's eyes, the lawyer feels the best approach to improving conceptions of diversity lie within the individual.
"The law is not effective in these areas and frankly, both before and after this ruling it's not like the law is settled and clear. Better diversity is about humans treating each other as humans," says Porter.
Porter is of the opinion that both schools and businesses can benefit from diversity initiatives and plans "that are absolutely permissible [by the law]."
"I hope it doesn't make people stop being creative. There are lots of programs out there, and we shouldn't let the law tie our hands from doing the right thing."
The decision doesn't look like it will transcend into other realms, at least in the legal sense. "Diversity for public employers has not been tested in the Supreme Court, so maybe for public employers it will make them rely on diversity as a compelling interest," Porter says.
Adding a caveat to this idea, Porter pointed out that laws between the private and public sectors, whether it's a school or a business, are not uniform and thus have different legal contexts for which to argue for and against a claim.
"Affirmative action plans [for example] that rely entirely on race are extremely different to uphold [compared to this case]. So, in some ways, the case is limited to the education context," Porter says.
The difficulties ahead
"The Civil Rights Movement today is a misnomer,"
The case has potential to affect a wide array of groups, and in different ways. All three individuals agreed that progress is possible from this verdict, but that there are still several troubling aspects to consider, with consequences that have potential to affect all of America.
One problem that Porter sees is that there is now an increased likelihood that diversity-related issues will be met with more scrutinizing eyes in future legal issues.
"It is going to be a difficult road to get a plan that survives constitutional scrutiny, and shows a compelling interest, and how it uses race or ethnicity as a factor in any capacity."
Another of Harrington's concerns is the long-term impact of stunting the growth of racial pluralism in schools, and not allowing young students to interact with members of different racial backgrounds. "We ultimately do a disservice to our communities and the workforce pipeline, and we are all hurt by that. I think what you don't address in early childhood education comes back to hurt you later on," she argues.
Civil Rights advocates, and those who believe there are still social justice goals left to achieve, must also take note of this decision; moreover, they must consider who appears to be making the rulings. Harrington noted that although Justice Kennedy does provide a legal loophole of sorts in this particular case, his other decisions when dealing with cases in affirmative action or discrimination have proven to be of a more conservative nature than previous justices like the retired Sandra Day O'Conner.
To this extent, Harrington believes that this case creates something very worrisome for civil rights advocates who are trying to identify legal means to address the vestiges of discrimination, inequality, access, and some of the core issues of the Civil Rights Movement.
Dr. Thomas added a further admonition, saying that the Civil Rights Movement achieved its initial goals via legal intervention, but the pursuit of social justice and the furthering of those civil rights must now come through diversity management.
"The Civil Rights Movement today is a misnomer," he says. "We have been working in the legal arena to achieve civil rights, [and now] we may have to have other kinds of remedies." How people manage and make decisions within the context of differences and similarities, and how this is done in organizations and communities, is what concerns Thomas now.
To Thomas, looking for legal remedies, given the court's current trajectory, will not yield the results that most advocates are looking for; similarly, Porter and Harrington both feel that creativity and individual determination are going to be the new key elements in moving forward.
"Americans have to become concerned with the ties that bind [us]," Thomas emphasizes.
These ties are reflected in the values, principles and shared experiences that bring people together regardless of their differences, racial or otherwise.
What next?
...the Supreme Court has... ...literally hindered the increase of racial pluralism in public schools.
What was accomplished by the Supreme Court with this ruling is a matter of perception. Whatever the opinion of the observer may be, it is important to recognize that at the base of all that has transpired rests the interpretation of a law. To denounce the overall verdict of the five majority Justices as racist would be inaccurate.
What is accurate is that the Supreme Court has undermined one tool used in hopes of ending what many identify as de facto segregation. They have literally hindered the increase of racial pluralism in public schools.
The United States, if it is to remain relevant in an increasingly global environment, must adopt a more sophisticated understanding of pluralism, inclusion and diversity. Race is but one factor highlighted here, and school districts but one example, yet the same can be applied to any number of diversity issues.
The Justices have spoken, but the jury remains out as to whether or not the Supreme Court has provided the leadership necessary for a diverse, multicultural society to thrive beyond its current state.
The names of the two cases involved in the June 2007 Supreme Court decision are Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education
Sources:
Dr. R. Roosevelt Thomas, CEO of Roosevelt Thomas Consulting & Training, and Senior Research Fellow for the American Institute for Managing Diversity, can be reached at 404-212-0070.
Melanie Harrington, Executive Director for the American Institute for Managing Diversity, can be reached at 404-575-2131.
Michael Porter, employment lawyer for Miller Nash LLC, can be reached at mporter@millernash.com or 503-224-2858.
Read more:
- For more on Supreme Court rulings, read "Case of the month: Supreme Court clarifies standards in discrimination cases," by Beth Picardo.
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