I have been asked to comment on a proposal for SCOTUS action based on the Chemerinsky 2003 article found in the North Carolina Law Review. Please note that while I am making some arguments, this essay is not to be cited. I still have friends and interests in certain activities and this essay’s citation would require a discussion with which I am not concerned. This essay is a vehicle for me to help organize some thoughts and a place to begin research on the issue at hand.

There is a call among some scholars for the Supreme Court of the United States to overturn Milliken v Bradley (1977) on the grounds that the requirement for proof of discriminatory intent places an undue burden on the plaintiffs instead requiring proof of discriminatory impact. I think this approach is inadequate and an imprecise reading of the Chemerinsky article.

It needs to be clarified at the outset that Chemerinsky, at least in this article, makes no call for Milliken’s overturning. The closest he comes is when he lists an alternative decision among a litany of other alternative decisions as things that would have caused a substantially less resegregated public school system. At no point is there an argument that reinterpreting Milliken would rectify the harms contributed to by the earlier decision. That genie has left the bottle and other facts presented in the Chemerinsky article prove this.

Chemerinsky finds Milliken irrelevant in Southern States, because it is easy for plaintiffs in those cases to demonstrate de jure segregation. The Milliken problem is in the northern states where state policies are discriminatory in their impact and not necessarily in their intent (a discriminatory housing policy may cause a segregated school district but because it is not an educational policy it is deemed to not intentionally cause a segregated school district.)

Chemerinsky’s discussion of more recent court decisions proves the ineffectualness of the proposed Milliken decision. Courts are no longer willing to issue new desegregation orders, even in the face of irrefutable proof of school resegregation. Milliken provides the court with a type of remedy to mandate upon school districts, but a lack of court willingness to even issue a desegregation order means the Milliken revision would do nothing. Chemerinsky discusses 3 cases that halt the issue of new orders; the Milliken revision would need to be accompanied by action on these precedents. Voluntary desegregation efforts fall under a different problem, one which was recently addressed in oral argument before the Supreme Court and the fate of which is still unknown.

Even if the court were to overcome a failing of the above plan and be able to order school districts to implement multi-district desegregation remedies, there are still some problems. The white flight problem is not entirely circumvented as there will be boundaries marking the limits of the interdistrict cooperation. A student in downtown Detroit cannot be bused to Ann Arbor because the drive would take too long. White flight would then still be a possibility, it just means the flight will go further out than just a single school district boundary.

Chemerinsky also tries to head off the private school argument. He contends people do not go to private schools to flee the desegregation efforts because they did not. Private schools account for 17% of status quo segregation (Chemerinsky cites a source which I have not investigated because of a lack of need.) Assuming this 17% figure is accurate we need to remember that it is a measure of white flight when there is a viable alternative (relocation to a suburb). If Chemerinsky is correct that Milliken overcomes the white flight possibility then the 17% would increase as private schools become more than they are in the status quo to those that do not want to be part of a desegregated school district. Overall, white flight would still be a problem which could easily mitigate a significant portion of any gains the Milliken revision might have accrued.

The ultimate limitation upon the judiciary to bring about social change is easily seen in this instance. People may be racist and want segregated schools and will act to make it happen. There are so many other decisions on the periphery of the issues at play in Milliken that actual enforcement will never happen without more comprehensive judicial revisions. An example would be the complicated school financing issue. Even if some districts cooperated to end segregation there would still be inequities in school financing which can cause the very ills desegregation is supposed to resolve.

One possible action Chemerinsky does advocate however needs to be discussed. I am curious how after reading this article someone can contend it argues for a change in the burden required by Milliken. What there is a call for is to recast education as a fundamental right. The court found in these education cases that a strict scrutiny standard is inappropriate because there is neither a suspect classification at work (the poor is not a suspect class) nor a violation of a fundamental right. Chemerinsky hints that the solution lies in getting to the strict scrutiny standard.

I do not want to argue that education is not a fundamental right, but Chemerinsky is right about why the court does not make that determination: because then there would be an increase in burdens placed on the government. Recasting education as such would force a heightened standard and arguably one that would cause Milliken and the other cases mentioned above to be recast. This is the appropriate mechanism for action on Milliken and the better reading of the 2003 Chemerinsky article. While this solution would open a whole new can of worms, it is the only possible action on Milliken alone that can overcome the deficiencies I have illustrated with the limited Milliken ruling.

This is a diverse and interesting body of literature and I am surprised someone has decided to make a call for SCOTUS action based upon this one article. It is even further disconcerting that the reading of this single article is a poor reading and too simplistic for the complexity at work.