Academic

Turner on Voluntary Integration & Equal Protection

By Lawrence Solum

Ronald Turner (University of Houston Law Center) has posted The Voluntary School Integration Cases and the Contextual Equal Protection Clause (Howard Law Journal, Vol. 51, 2008) on SSRN.  Here is the abstract:

The United States Supreme Court, in a long line of decisions, has interpreted and applied the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in governmental actions subordinating and benefiting raced and racialized persons of color. In exercising its decisional power and authority over the years, and in discerning and defining the Clause's mandate, the Court has both accepted and rejected certain forms and manifestations of white supremacy and racial caste and hierarchy, and has identified circumstances in which governmental entities can and cannot lawfully engage in race-conscious conduct and decisionmaking. As discussed in this Article, the Court's line-drawing between constitutional and unconstitutional considerations of race has been anything but static and has varied along with the changing temporal, sociopolitical, and legal contexts existing at the time of the Court's rulings, as illustrated by the Court's contrary rulings on the constitutionality of the separate-but-equal doctrine in Plessy v. Ferguson and Brown v. Board of Education. More recently, in its 2003 Grutter v. Bollinger decision, the Court stated "Context matters when reviewing race-based governmental action under the Equal Protection Clause." The significance of context in the Court's equal-protection jurisprudence is again on display in the 2007 Parents Involved in Community Schools v. Seattle School District No. 1 decision, wherein the Court struck down racial diversity plans voluntarily adopted by school districts in Seattle, Washington and Louisville, Kentucky. This article examines the Court's decision and considers the debate among the justices over colorblind constitutionalism, race-still-matters realism, and contextual-consequential integrationism; the ultimate victors in and the outcome of that debate will establish the operative scope and meaning of the Equal Protection Clause both within and outside of the public school context.

Full post as published by Legal Theory Blog on May 20, 2008 (boomark / email).