REMEDIES EXAM ANSWER - BEST PAPER - SPRING 2014 - Fordham Law School
Source: https://www.scribd.com/doc/228023309/Remedies-exam-answer-Spring-2014-Best-Paper
Note: 48 hour take-home exam. Extracted from Scribd viewer (partial - pages 1-4 of 9 visible without subscription)
Exam posted at: http://www.scribd.com/doc/228023308/Remedies-exam-Spring-2014

================================================================================

Exam ID: E22013437 - May 2015

================================================================================

QUESTION ONE:

From Topeka Kansas to Seattle, Washington: Lessons of Brown v. Board of Education
and its progeny

When crafting a remedy or evaluating a plan to address segregation in public schools, should a
court "shut their eyes to reality . . . or consider [] the actual reasons for a plan in light of the
real-world circumstances that gave rise to it?" Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist. No. 1, 426 F.3d 1162, 1194 (9th Cir. 2005) (Kozinski, J., concurring). The answer is
different depending on whether the court is imposing a remedy or appraising the
constitutionality of a public school's plan. When a court is imposing a remedy, it must close its
eyes to the surrounding circumstances and confine itself to the constitutional infringement that
is before it. When appraising a school's decision, that same blind approach is unwarranted and
can have disastrous results.

The United States Supreme Court's jurisprudence has often hid behind the label of "strict
scrutiny" to strike down programs that endeavor to address real-world circumstances. For
example, in Parents Involved, Chief Justice Roberts found that a Seattle School District could
not use racial classifications to create a racially diverse learning environment. Seattle schools
experienced stark racial imbalance, yet the court found that because "Seattle schools were never
segregated by law," the school district could not rely on remedying the effects of past
intentional discrimination as a compelling interest.

This distinction between de jure discrimination and de facto discrimination has determined how
reaching a remedy the Court is willing to judicially impose. Compare Swann v.
Charlotte-Mecklenburg Board of Education (approving an intradistrict busing plan in a school
district organized under de jure segregation) with Milliken v. Bradley (rejecting as outside the
power of the court, a multi-district remedy despite single district de jure segregation and
otherwise clear de facto segregation). In both Swann and Milliken, the court articulated that the
"nature of the violation determines the scope of the remedy."

The broad question for the court in Swann and Milliken was identical: what is the power of a
federal court to remedy segregation in public schools? See Milliken (stating that certiorari was
granted to consider "the remedial powers of federal district courts.") Swann (stating that
certiorari was granted to review "the scope of powers of federal courts.")

The question in Parents Involved was different. The Court needed to determine the power of a
school district to craft a plan to remedy segregation within the district. See Parents Involved
(articulating the legal question as: "whether a public school . . . may choose to classify students
by race and rely upon that classification in making school assignments.").

Scope of Remedy: The Power of Federal Courts to Remedy Segregation in Public Schools

In Brown v. Board of Education (Brown I), minority school children sued to obtain
non-segregated admission to public schools. The defendants were school districts that had,
through the law, systematically maintained a dual-school system based on discrimination. The
Court found that this violated the Fourteenth Amendment. See Brown. Finding a constitutional
violation, the Court remanded the cases to the District Courts, ordering desegregation to take
place, "with all deliberate speed" for "the parties to these cases." Brown II (emphasis added).

In Brown, the court did not articulate a level of scrutiny. The school districts, acting as state
actors, had infringed on the students' right to equal protection. It was irrelevant whether the
discrimination was invidious or benign - no state interest could justify such discrimination. From
that point forward, districts that operated "state-compelled dual systems" had an affirmative
duty to eliminate racial discrimination "root and branch." Green v. New Kent County.

Consistent with this approach, in Swann, with a defendant before the court that had engaged in
state-compelled segregation, the court acknowledged that the district courts have "broad
power[s] to fashion a remedy that will assure a unitary school system." Swann.

The result in Milliken is different, but the guiding legal principle is consistent with the legal
principles articulated in Brown, Green, and Swann. In Milliken, the district court had ordered
parties to submit a multi-district desegregation plan that would include districts where no
constitutional violation had ever occurred. This course was selected because the district court
believed that a "Detroit-only" plan would not accomplish desegregation. See Milliken. The
Supreme Court, quoting Swann, held that since no constitutional violation in the non-Detroit
school district had occurred, compelling the non-Detroit school districts to participate in a
desegregation plan was outside the power of an Article III court. See id.

The Court consistently held that de jure segregation violated the equal protection clause,
Milliken II (approving desegregation plans limited to the Detroit School District), but it also
acknowledged that an Article III court can only fashion a remedy binding on parties whose case
or controversy is before the court. U.S. Const art. III, § 2.; Swann; Milliken.

Desegregation, from a constitutional standpoint, does not mean achieving racial balance. See
Swann; Milliken. An Article III court can order that school district lines be drawn in a
non-discriminatory fashion and it can certainly ensure those school districts are unitary.
Milliken. Ultimately, the power of the Federal district courts is to eliminate "the vestiges of de
jure segregation in all facets of their operations." Missouri v. Jenkins (emphasis added).

Limited Power: Limited Results

The result of this limited power of Federal courts is disastrous. Detroit is 85 percent
African-American. African-American unemployment in Detroit was at 23 percent in 2009. The
crime rate has soared and schools remain heavily segregated. G.M., Detroit and the Fall of the
Black Middle Class. The path of Detroit is a real-world example of the effect of a segregated
population, be it de jure or de facto.

A Partial Solution: Allow "Benign" Race Based Classifications under Rational Basis Review

In Parents Involved, Judge Kozinski argued for a more reasoned approach to equal protection
analysis. (Kozinski, J., concurring). Under Kozinski's approach, courts would continue to apply
strict scrutiny to racial classifications used to oppress minorities. These classifications, like
those in Brown, have "no conceivable justification." Id. Racial classifications that are clearly
not meant to oppress minorities would be reviewed under what has been called rational basis
review with bite. See id. (citing City of Cleburne).

Under this approach, if a litigant challenged a desegregation plan like the one at issue in Parents
Involved, the court would first determine if the racial classification is meant to oppress or if it
has a non-invidious purpose. The court would be guided in this decision by comparison to
elements of discriminatory programs that the Supreme Court has historically invalidated. Judge
Kozinski called these elements "baggage that the Supreme Court has found objectionable."
(Kozinski, J., concurring). If precedent does not adequately distinguish between "benign" and
"invidious," a court should balance whether the plan (1) segregates or integrates; (2) gives
political power based on race; and importantly (3) whether the program creates "racial stigma."
See Kozinski, J., concurring (analyzing the Seattle School District Number 1 plan). These
factors are consistent with the reasons the Supreme Court originally invalidated de jure
segregation. See Brown (discussing the stigmatic effect of segregated schools).

Next a court would determine if the "benign" race based classification is rationally related to a
legitimate government interest. At this point, the Court would have the opportunity to determine
if the race based classification is constitutionally permissible, with the full weight of its
real-world experience, context, and the offered justifications of the government.

Looking Forward by Looking Back: Applying Rational Basis Review Empowers
Municipalities without Dramatically Altering Supreme Court Precedent

Adopting rational basis review for non-invidious race classifications would not alter the results
in Milliken or Missouri v. Jenkins because neither case applied a standard of review. Instead,
the Court found that the desired remedial plan was outside the scope of the equitable powers of
the judiciary.

The case that comes out differently is Parents Involved. As Judge Kozinski's Ninth Circuit
concurrence articulates, the Seattle School District plan promotes integration, not segregation,
does not grant political power based on race, and most importantly, does not generate any
stigma. Parents Involved (Kozinski, J., concurring). Such a program would satisfy rational
basis review. Similarly, offering programs that generate benefits like "historically black
colleges" would, on-balance, pass constitutional muster. While they do segregate, they do not
grant political power or promote racial stigma.

[NOTE: Remaining pages (5-9) were behind Scribd's paywall and could not be extracted.]