December 01, 2015 Urban Lawyer

United States Supreme Court Justices' Voting in Systemic Racial Discrimination Cases in Education

by Lewis M. Wasserman & John P. Connolly
In the Classroom

In the Classroom

Lewis M. Wasserman is an Associate Professor of Educational Leadership and Policy Studies at the University of Texas at Arlington. He holds a Ph.D. in psychology from Hofstra University, Hempstead, New York, and a J.D. from St. John’s University School of Law, Jamaica, New York. He engaged in the private practice of law for 23 years in New York, specializing in public education and civil rights litigation, before entering the academy. He also teaches Education Law at SMU Dedman College of Law in Dallas. His most recent article, Overcoming Obstacles to Religious Exercise in K-12 Education, was published in Notre Dame Law School’s Journal of Legislation
in 2014.

John P. Connolly is a political scientist and statistician with the Office of Information Technology at the University of Texas at Arlington. He earned his Ph.D. in political science from the University of Texas at Dallas in 2013. He also holds a Master of Liberal Studies from Southern Methodist University, a Master of Business Administration from University of Dallas, and a Bachelors of Engineering from the University of Strathclyde in Scotland. His essay on political ideology and issue constraint is scheduled for publication in the International Encyclopedia of the Social and Behavioral Sciences, in March 2015.

The authors gratefully acknowledge the special contribution of Pamela L. Steen, Esq., Member of the New York Bar, for her helpful commentary and criticism during the production of the manuscript.

On May 17, 1954, United States Supreme Court Chief Justice Earl Warren delivered a unanimous ruling in the landmark civil liberty case Brown v. Board Of Education.1 The Court held that de jure segregation of public schools was a violation of the Equal Protection Clause of the Fourteenth Amendment and was therefore unconstitutional.2 In Brown, the Chief Justice worked hard to obtain unanimity,3 fearing that a divided decision would produce backlash.4 Despite his success in bringing about a unified Court, his expectations about minimizing resistance were misplaced.5

A substantial number of scholars assert that in the post-Brown period the Supreme Court has largely gutted the Equal Protection Clause, leaving Brown’s promise unfulfilled.6 This asserted trend corresponds more or less in time to the diminution of liberal perfectionist influences on the Court7 — Justices who believed that progressive ideals, such as racial integration, should guide constitutional interpretation — represented by the departures of Chief Justice Warren and Justices William Brennan, Thurgood Marshall, and William O. Douglas,8 and the elevation of “minimalist”9 and “fundamentalist”10 Justices to the Court, commencing during President Nixon’s administration.11

In this article, we trace the course of liberal perfectionist jurisprudence at the Supreme Court in the post-Brown period, explaining the ground for its decline, and account for this trend using empirical methodology derived largely from political science. We argue that those who assert Brown’s promise has been unfulfilled have relied on a perfectionist interpretation of the Constitution that gives more weight to Brown’s aspirational statements and moral conclusions than the decision’s specific holding. This specific interpretation resulted in utopian expectations about what Brown promised, leading ultimately to disappointment for those adhering to this view.

In Part I, after examining Brown, we follow its arc to its peak enforcement period, in or about 1973. In Part II, titled Conservative Retrenchment, we show how liberal perfectionist aspirations in racial matters were thwarted from 1974 to present. During this period, we see at the Supreme Court (1) an acceptance of systemic unequal funding of educational opportunity, (2) establishment of stringent criteria to prove unlawful race discrimination;12 and (3) a limitation on the permissible scope of remedial orders for purposeful-systemic racial segregation.

In Parts III and IV, we analyze case developments at the Court regarding benign race-based discrimination as a tool for voluntary K-12 desegregation and college and university admissions. In each area we see reluctance at the Court to support such measures.13 Moreover, we observe in the states a counter-movement to defeat benign discrimination efforts, mostly through the process of amending state constitutions.14

In Part V, we briefly examine the nomination and confirmation process during the Nixon and Reagan administrations, paying particular attention to the goals each president had respecting his choices and the factors that facilitated or impeded those selections.

In Part VI, we examine empirically the Justices’ voting in systemic racial discrimination cases in the post-Brown period using the attitudinal model of judicial voting developed in political science literature. In furtherance of this objective we studied the 552 votes rendered by the Supreme Court Justices for the period under review. Using statistical techniques that account for correlated voting patterns arising from repeated observations of the same Justice, we examine the effect of Justices’ ideologies, their appointment dates, and legal precedent, on their liberal or conservative voting.15

Among our findings are large effects associated with Justices appointed during the Nixon and Reagan appointment eras.16 We also find a precedent effect associated with the seminal 1974 case of Milliken v. Bradley,17 which narrowed the permissible scope of remedial measures for purposeful segregation in public schools.18 In Part VII, we synthesize the foregoing sections and comment on the prospects for changes in the Court following the 2014 midterm elections and the 2016 race for the White House.

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