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Hastings Constitutional Law Quarterly

Abstract

In Parents Involved in Community Schools (PICS) v. Seattle School Dist. No. 1, a majority of the Supreme Court reaffirmed the constitutionality of a school district's use of race-conscious strategies designed to achieve the compelling benefits of a racially diverse student body. The Court's decision turned on the question of whether the Equal Protection Clause bars a public school district from considering the race of children of the majority group as part of its effort to foster a racially integrated school. The answer not only hinges upon an understanding of the Supreme Court's interpretations of the Equal Protection Clause in Brown v. Board of Education and its progeny; it also hinges upon the very nature of the principle of equality itself.

A majority of the Court in PICS actually rejects a view of the Equal Protection Clause that would treat the African-American student in Brown and the white student in PICS as "like" cases. Indeed, a careful analysis of the opinions in PICS reveals that a majority of the Supreme Court has rejected any view of the Equal Protection Clause and of the principle of equality that is "color-blind." Instead, a majority of the Court seriously questions whether governmental actions that recognize and remediate real racial differences in educational opportunities should be subjected to strict scrutiny.

Ultimately, the majority seems to have recognized the authentic principle of equality within the Equal Protection Clause. In many cases, African-American children in fact are not like white school children in their educational opportunities. A school district's program that recognizes those differences and treats African-American schoolchildren differently from white school children in order to achieve the goal of ultimately eradicating those differences is true to the principle of equality.

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