Document Type

Article

Publication Title

University of Pennsylvania Journal of Constitutional Law

Abstract

Part I of this Article explores the implications of the judiciary placing increasing responsibility for addressing the legacy of segregation in the hands of local school boards, while simultaneously making it increasingly difficult for school boards to address these inequalities through non-merit-based, race-conscious student assignment policies. Part II examines Brown and its progeny as the point of departure in determining the applicable standard for K through 12 integration programs. Finally, Part III of this Article concludes that courts should view voluntary school integration as an extension of the Court's school desegregation jurisprudence rather than the Court's affirmative action jurisprudence. This makes sense not only historically, but analytically as well. Supreme Court cases finding no harm from integrative student assignments are analytically inconsistent with affirmative action rulings. In affirmative action cases, the Equal Protection Clause requires courts to consider the harm done to a white student who has been denied admission to an institution of higher education. Those same considerations are not triggered, however, when school districts delicately manage the assignment of K through 12. students in largely fungible public schools for pedagogical purposes. Relieving school districts that engage in voluntary integration efforts from having to satisfy the strict scrutiny standard would also have important and valuable practical implications, as the Grutter paradigm fails to acknowledge and give due weight to the myriad considerations that school districts must balance as they formulate and implement effective student assignment policies.

First Page

629

Volume

9

Publication Date

2007

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