Maryland Bar Bulletin
Publications : Bar Bulletin : February 2012

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The idea of creating a public workforce that reflects Maryland’s racial diversity is an admirable one, but is intentional racial balancing a constitutional way of accomplishing it?  Recent Supreme Court jurisprudence in the area of public education indicates that it is not.

In two of the most famous and important legal opinions of the past century, the Supreme Court in Brown v. Board of Education I and II declared that de jure segregation of public schools on the basis of race violated the Equal Protection Clause of the Fourteenth Amendment, and that desegregation was to proceed “with all deliberate speed.” Discouraged by a lack of progress, the Supreme Court issued opinions in 1968 (Green v. County Sch. Bd. of New Kent County) and 1971 (United States v. Montgomery County Board of Education) which required school systems formerly segregated by law to take affirmative action to desegregate, and which affirmed the use of fixed mathematical racial formulas as a means of doing so.

Here in Maryland, although the Fourth Circuit noted as early as 1958 that Maryland’s public schools were generally desegregating “with more than deliberate speed,” the Maryland State Board of Education promulgated a regulation in 1971 – still on the books in Maryland – which requires local boards of education to “develop and implement plans and procedures” to attain “racial balance at the various levels” of their respective school systems reflective of the racial composition of their respective jurisdictions. A little more than a decade later, however, the Supreme Court in Wygant v. Jackson Board of Education rejected a race-conscious layoff plan that favored African-Americans based on a finding that the percentage of minority teachers was less than the percentage of minority students. Notably, the Court held that the use of quotas was not sufficiently narrowly tailored because other, less intrusive means of accomplishing the goal of racial diversity – such as the adoption of hiring goals – were available. 

Several years later, in Freeman v. Pitts, the Court reinforced its position, stating that “[r]acial balance is not to be achieved for its own sake,” but only “to be pursued when racial imbalance has been caused by a constitutional violation.” The Court explained that “[o]nce the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.” The Court further stated that “[a]s the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system,” and that “[t]he causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith.”

More recently still, the Court in Parents Involved in Community Schools v. Seattle School District No. 1 further reinforced the unconstitutionality of racial balancing absent recent and relevant constitutional violations when it rejected school policies which classified students by race for purposes of making school assignment decisions. In so doing, the Court opined that:

[a]ccepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that at the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class. Allowing racial balancing as a compelling end in itself would effectively assure that race will always be relevant in American life, and that the ultimate goal of eliminating entirely from governmental decision making such irrelevant factors as a human being’s race will never be achieved. An interest linked to nothing other than proportional representation of various races would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the program continues to reflect that mixture.

The Court concluded its analysis by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Applying this analysis to public sector employment in general, racial balancing by any public entity is likely to be held unconstitutional unless it is narrowly tailored to remedy prior de jure racial discrimination. Even so, the Supreme Court has made clear that the public entity bears the burden of proof – a burden all the more challenging considering the increasing remoteness of de jure violations to the present day. Entities interested in promoting a workforce with a racial composition representative of their respective jurisdictions should instead focus on less intrusive means of accomplishing that goal, such as the adoption of recruitment goals and the dedication of resources to ensure those recruiting goals are met.

Andrew G. Scott is associate in the Education and Labor Employment Group at Hodes, Pessin & Katz, P.A.

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Publications : Bar Bulletin : February 2012

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