The Harvard admissions trial isn’t the only place where impact litigators are working to undermine affirmative action and school desegregation policies. In February of 2018, Lawyers from the Pacific Legal Foundation, a California-based legal organization, descended on Hartford, Connecticut to litigate Robinson v. Wentzell, an equal protection challenge to the state’s landmark civil rights case: Sheff v. O’Neill.

Sheff v. O’Neill

Sheff, decided in 1996 by the Connecticut Supreme Court, mandated that Hartford public schools take steps to remedy the district’s rampant segregation in order to provide students with a public education unimpaired by “racial and ethnic isolation.” This goal was implemented through a series of agreements between the plaintiffs and the State of Connecticut, and attempted to remedy segregation by funding magnet schools in Hartford, hoping to draw suburban students to the city. Connecticut materially breaches the settlement agreements if they fail to have a designated percentage of Hartford students studying in “integrated” schools. To be an integrated school under the most recent agreement, which expired in 2017, the student body needed to be composed of between 25% and 75% “reduced-isolation students,” who were defined as any students that are not black or Hispanic. Reaching the lower end of this benchmark would put the school within one standard deviation of the region’s overall racial composition. Failure to meet these goals could result in cuts to the school’s funding or loss of their ‘magnet’ status. The Sheff plaintiffs and the State of Connecticut remain in negotiations about what the Sheff standards should be going forward.

There are far fewer spots in Hartford’s 20 magnet schools than there are school-age children in the city. Which students are selected to attend each magnet school is therefore determined by lottery, selected from a pool that includes both Hartford residents and suburban students. Although the exact mechanics of the lottery are unknown, lottery entrants are weighted based on non-racial factors such as their home address, listed school preferences, or whether their sibling attends the school. There was no place on the 2017-2018 lottery application form for an applicant to list their race.

The plaintiffs in this challenge are a group of local parents whose black or Hispanic children were not selected in any lottery. The plaintiffs argue that the 25% “reduced-isolation student” benchmark is actually an enforceable quota, that the lottery is weighted to account for a student’s race, and that Hartford-area magnet schools are literally reserving 25% of the seats in their school exclusively for students who are not black or Hispanic, thereby creating an impermissible racial classification.

The plaintiffs for the original Sheff case, and their lawyers from the NAACP-LDF have moved to intervene on behalf of the defendants out of concern that the State of Connecticut, who opposed the initial Sheff decision, is not motivated to vigorously defend against the Robinson challenge.

The Hartford residents that are the face of this lawsuit are understandably frustrated that their children have been unable to attend one of Hartford’s high-quality magnet schools, but their lawsuit is likely to have substantial ramifications for school desegregation across the country.

School Desegregation and the Supreme Court

Starting in the 1970’s, the Supreme Court has consistently opted to limit what desegregation strategies are constitutionally permissible. Following a flurry of far-reaching decisions in the 50’s and 60’s, the Court became more concerned with the line between de jure segregation (segregation caused by law) and de facto segregation (segregation allegedly caused by the preference of private citizens), and shied away from remedying any segregation it deemed de facto. The court formally embraced this dichotomy in 1974, when Milliken v. Bradley prohibited desegregation plans that forcibly bussed students from one school district to another. In areas like New England, where school districts tend to mirror municipal borders, school boards were forced to rely voluntary bussing and other indirect methods to combat the effects of white flight.

Four years later, Regents of University of California v. Bakke prevented universities from reserving a numerical portion of their available seats for a particular race of applicant, but did allow race to be one factor among many in determining university admission. In 2003, Gratz v. Bollinger and Grutter v. Bollinger further confined desegregation efforts by permitting race to be considered in university admissions processes only if it was one factor among many in an individualized assessment of each candidate, was an attempt to create diversity in higher education, and was considered without using a racial quota or point system.

2007’s Parents Involved in Community Schools v. Seattle School District continued to shut the door on primary- and secondary-school desegregation, but failed to do so completely. Parents Involved addressed the question of whether race could be used to allocate seats in oversubscribed high schools. Although a 5-4 majority found the specific desegregation measures at issue unconstitutional, the court fractured over the circumstances under which an individual’s race could inform decision-making. Chief Justice Roberts, writing for the plurality, believed that while diversity was a compelling interest at the university level, it required a consideration of more than just an individual’s race and had little bearing on primary and secondary education. Chief Justice Roberts, as well as Justices Thomas and Kennedy in their concurrences, focused on the need for colorblindness in efforts to overcome racism. To the majority, the very act of acknowledging someone’s race was an insult to their personhood. The Chief Justice famously wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Despite his concurrence, Justice Kennedy did not share the Chief’s strict rejection of diversity. Although he would invalidate the defendants’ desegregation schemes for failing to narrowly tailor their plan by considering race-neutral alternatives, Justice Kennedy’s concurring opinion outlined circumstances under which diversity might be a sufficiently compelling interest to permit racial classification in primary and secondary schools. He also introduced a new compelling interest: preventing racial isolation.

The four dissenting justices stressed the utility of racial classification for remedying America’s racial caste system. They argued that failing to give more deference to benign racial classification, and instead dogmatically condemning any consideration of race undermined the purpose of the equal protection clause. Presumably,  however, the four dissenting justices would have signed on to any future opinion from Justice Kennedy upholding interests in diversity or the prevention racial isolation for the sake of maintaining at least some of the 14th Amendment’s anti-subordinative power.

What’s at Stake in Robinson v. Wentzell 

With Justice Kennedy’s retirement from the Supreme Court, however, the chance of further exploring the compelling interests he saw in Parents Involved became much less certain.

Pacific Legal, a prominent player in the Parents Involved litigation, is reprising that role by organizing and training the Robinson plaintiffs and their local lawyers. The plaintiff’s memo in opposition to judgment on the pleadings tries to apply the Chief Justice’s Parents Involved opinion to the facts in Hartford. They allege that the lottery is re-run until the right percentages of student race are achieved and that the Sheff benchmarks for identifying an integrated school are actually unyielding racial quotas which leave classroom seats empty unless they can be filled by reduced-isolation students. The facts of the case, as presented by the plaintiffs, bear a striking resemblance to those in Parents Involved: over-enrolled schools using numerical racial quotas to determine which school a student will attend. The defendants, on the other hand, argue that the lottery does not–and can not–take race into account and that any empty classroom desks stem from Connecticut’s refusal to increase funding for magnet schools from year to year. Importantly, the state defendants assert that they are pursuing the compelling interests of creating diversity and avoiding racial isolation, and argue that Justice Kennedy’s Parents Involved opinion is, as the opinion decided on the narrowest grounds, the only proper precedent to take from that case.

The United States District Court for the District of Connecticut heard oral argument on the defendants’ Motion for Judgment on the Pleadings October 16th, but it seems clear from their insistence on a federal court adjudicating the issue that Pacific Legal hopes to take this case to the Supreme Court. The ramifications of a future SCOTUS ruling on the matter are likely to extend well beyond the facts in Robinson. Since Justice Kennedy’s concurrence robbed the Chief Justice’s opinion of most of its precedential power, Robinson could provide Pacific Legal a second opportunity to cement the Chief Justice’s colorblind jurisprudence.

Based on the documents the Robinson parties have submitted to date, the case will likely turn on two issues. First: whether the court continues to endorse the constitutionality of race-neutral methods used to reach the same result a race-conscious assessment might. The magnet lottery uses several non-racial factors as a proxy for the applicant’s race. In their Parents Involved opinions, both Roberts and Kennedy indicate that the use of race-neutral alternatives to combat segregation, rather than express racial classifications, would allow a school district to avoid strict scrutiny. Roberts’ endorsement was less overt than Kennedy’s, however, and it is entirely possible that in the Chief Justice’s eyes, a failure to consider race-neutral alternatives would be fatal to a desegregation plan, but that utilizing those alternatives would not necessarily insulate a plan from attack. This seems plausible given the second issue in Robinson: whether the reduced-isolation benchmark, which does facially classify based on race, imputes that classification onto the race-neutral methods it measures. The Supreme Court’s approach to benign racial classification requires that anyone seeking to remedy racial disparities needs to “hide the ball,” and the reduced-isolation benchmark might give the game away. Moreover, the court might be concerned that linking a school’s magnet status (and attendant funding) to its ability to meet the reduced-isolation benchmark imposes a racial quota in spirit, if not in fact.

Beyond legal precedent, a ruling that abolishes Hartford’s race-conscious magnet school policies could have other repercussions. Pacific Legal is a stalwart advocate for charter schools, the local growth of which has been stymied by Hartford’s robust and diverse magnet school system. These private schools are typically more segregated than Hartford’s magnet schools and are not staffed by union teachers. Robert Cotto, Jr., a Hartford resident, teacher, and scholar of the city’s educational system hypothesizes that this blow to union power is likely to be a feature, not a bug, for Pacific Legal, who submitted an amicus brief in support of the petitioner in Janus v. American Federation of State, County & Municipal Employees, Council 31It is possible that smoothing the way for a more profitable school system is one of the ultimate goals of this litigation, but whatever their ultimate motivations, by playing on Hartford residents’ legitimate frustrations with an under-funded school system, Pacific Legal is offering a drastic solution at the cost of efforts to fight long-term, systemic racial segregation.