Desegregation, Once Again: The New Chapter of an Old Debate

Reading Regents and the Political Significance of Law

THE FOLLOWING ARTICLES PRESENT important new perspectives on the Little Rock school desegregation crisis. When Arkansas governor Orval E. Faubus, in the name of preserving order, directed the Arkansas National Guard to prevent nine black young people from entering Little Rock Central High School on September 2, 1957, he precipitated a constitutional crisis. Blocking a federal court order upholding the Little Rock School Board's attempted compliance the U.S. Supreme Court's decisions of 1954 and 1955 in Brown v. Board of Education, Faubus placed the governor's police powers at odds city authorities, President Dwight D. Eisenhower, and the Supreme Court itself. Yet the constitutional issues engendered by Faubus's actions remained abstract to most people except for legal experts. At the time and ever since, it was the practical consequences that garnered public attention: the consequences for the school board's good-faith effort to implement the token desegregation of a single city school in the face of growing hostility on the part of the white community, for Faubus's purported political ambitions, for the Eisenhower administration's inconsistent stance on the Brown decision even as it wrestled a Cold War propaganda battle over the same issue, for the authority of the Supreme Court as it confronted mounting opposition from southern segregationists and their northern conservative sympathizers, and, above all, for the courageous Little Rock Nine, bearing the painful assaults of racial animosity. The three essays that follow suggest how the litigation culminating in Cooper v. Aaron shaped these consequences and their ramifications for decades to come. The Cooper v. Aaron litigation went through several stages. The Supreme Court's Brown decision of 1954, holding that racially segregated public schools were inherently unequal and therefore violated the Fourteenth Amendment's equal protection clause, precipitated the Little Rock School Board's efforts to comply. Shortly before the Court handed down the 1955 Brown II order, which required desegregation plans to proceed with all deliberate speed but left their formulation to community school boards-subject to local federal court oversight-Little Rock school officials published a plan that opened only Little Rock Central High to token desegregation, maintained racial segregation at all other schools, and left unstated when those schools might be desegregated. Once the limited scope of desegregation became apparent, the Little Rock branch of the National Association for the Advancement of Colored People (NAACP) rethought its earlier trust in the school board's good faith effort, and, in the name of black parents and children, initiated suit in 1956. Styled Aaron v. Cooper, the case was tried and decided during August 1956. The black litigants lost at trial and upon appeal in April 1957. As the summer unfolded and the nine black students prepared to enter Central, Faubus and city school officials confronted mounting hostility from segregationists. Meanwhile, the federal government declined to become involved. After various public and secret maneuvers, Faubus implemented a strategy defying the federal court's desegregation order. The ensuing three-week crisis culminated in Eisenhower's dispatch of the 101st Airborne to Little Rock, which ended the violence and enforced the court order. Inside Central High, the Little Rock Nine-Minnijean Brown, Elizabeth Eckford, Ernest Green, Thelma Mothershed, Melba Pattillo, Gloria Ray, Terrence Roberts, Jefferson Thomas, and Carlotta Walls-endured continuous harassment. School officials responded by asking the federal court for a two-and-a-half-year delay in implementation of the desegregation decree. Although the local federal court awarded the delay, the NAACP appealed. The U.S. circuit court, sustained by the U.S. Supreme Court, upheld the NAACP's argument that Little Rock's desegregation plan had to continue to be enforced. …

In the first 25 years after Brown v. Board of Education, Topeka, Kansas, the U.S. Supreme Court handed down more than thirty cases involving desegregation of public school systems. Yet, over the past quarter of a century, the Court has not played much of a role in ensuring educational equity when dealing with segregated schools, resolving only six cases. The Court's lack of involvement in desegregation efforts has undoubtedly contributed to the fact that many school boards act as if Brown had never been decided. After reflecting on the status of school desegregation, the article concludes that while the Supreme Court and lower federal courts contributed a great deal toward the dismantling of desegregated school systems in the first 25 years after Brown, their actions in the last 25 years resulted in a situation of having the nation taking one step forward and half of a step backwards, because the very conditions that Brown sought to eliminate are unfortunately returning to the public schools. One can only hope that as the nation celebrates the 50th anniversary of Brown, the Court will remain true to the spirit of this landmark case and its progeny by safeguarding equal educational opportunities for all students. INTRODUCTION On May 17, 1954, the United States Supreme Court decided its most important education case, perhaps its most significant ruling, of all time. In a unanimous nine-to-nothing opinion in Brown v. Board of Education of Topeka, Kansas (1954) (Brown I), the Court held that the de jure segregation of public schools based on race deprived minority children of equal educational opportunities in violation of the Equal Protection Clause of the 14th Amendment. A year later, in Brown v. Board of Education of Topeka, Kansas (1955) (Brown II), the Court set about dismantling segregated school systems. While later cases attacked de facto and de jure segregation in schools as well as the wider arena of American society, Brown I remains the unchallenged catalyst for judicially initiated systemic change. Beginning with school desegregation and culminating in the Civil Rights Movement, Brown spawned an era of equal educational opportunities by heightening consciousness for protecting the rights of other disenfranchised groups, most notably women and students with disabilities. In the first twenty-five years after Brown, the Supreme Court handed down more than 30 cases involving desegregation of public school systems (Russo, Harris, & Sandidge, 1994). Yet, over the past quarter of a century, the Supreme Court has played a diminished role in ensuring educational equity, resolving only six cases. The Court's lack of involvement in desegregation efforts has undoubtedly contributed to the fact that many school boards act as if Brown had never been decided. One can only hope that as the nation celebrates the 50th anniversary of Brown, the Court will remain true to the spirit of this landmark case and its progeny by safeguarding equal educational opportunities for all students. Ten years ago, in commemoration of the 40th anniversary of Brown, this author and others (Russo, Harris, & Sandidge, 1994) reviewed more than three dozen cases on public school desegregation that the Court resolved in the 40 years since Brown I. Rather than cover the same ground, the essential purpose of this article is to pick up where the last one ended. The first and larger part of this article reviews litigation in the federal courts dealing with desegregation. The initial section of legal analysis reviews Supreme Court cases from the 1990s before examining lower federal court cases after the Court last acted, focusing on disputes over whether formerly segregated school systems achieved unitary. The latter part of the legal analysis highlights cases on unitary status because only by creating school systems that operate in such a fashion, meaning that schools function without regard to segregation by race by serving all children, can educators create the necessary pre-conditions for academic success. …

The Trump administration refused to defend important provisions of the ACA in court and pursued rules that could open the door to less-regulated insurance options.

Hernandez v. Texas: Legacies of Justice and Injustice

<em>Hernandez v. Texas</em>: Legacies of Justice and Injustice

Congress created the United States Court of Appeals for the Federal Circuit in 1982, in part, to establish nationwide uniformity in patent law. The law governing the Federal Circuit's appellate jurisdiction was recently addressed by the Supreme Court's decision in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. The Court held in Holmes that the Federal Circuit's appellate jurisdiction is governed by the well pleaded complaint rule and specifically rejected counterclaims as a vehicle to vesting appellate jurisdiction with the Federal Circuit. The Supreme Court's decision opens the door for claims of patent infringement under 35 U.S.C. Section 271, and other patent claims, to be reviewed by regional circuits, instead of the Federal Circuit. The impact of Holmes will also be felt with respect to a federal district court's removal jurisdiction and exclusive jurisdiction over patent counterclaims. The door is clearly open for the development of substantive patent law outside of the hands of the Federal Circuit and, perhaps even more importantly, outside of the federal courts. The very uniformity Congress attempted to introduce through its creation of the Federal Circuit and a federal patent law system may become undone by the Supreme Court's decision in Holmes. This Article addresses the potential non-uniformity in patent law Holmes may create and concludes that the potential for such a development is real. To prevent these situations from occurring, the effect of Holmes on the Federal Circuit's appellate jurisdiction and federal courts' jurisdiction must be limited and regional circuits and state courts must look to the Federal Circuit for guidance on patent law issues. This Article concludes that the only real solution is a legislative response, with Congress amending Section 1338 in such a way to return the Federal Circuit's appellate jurisdiction, and federal district court's original and exclusive jurisdiction, to their pre-Holmes form.

Reconsidering Palmer <scp>v</scp> Thompson

Educational leaders are bound by legal and ethical imperatives to make certain that all children have access to an education and the opportunity to learn. To better understand how law and ethics intersect, this article adopted the cultural study perspective to analyze U.S. Supreme Court opinions for language revealing the intersection of law and ethics. The Supreme Court has contributed to the realization of educational goals, relying on the Fourteenth Amendment's Equal Protection Clause to ensure that equal educational opportunities are not deprived because of a child's race {Brown v. Board of Education, 1954) or illegal immigration status ( Plyler v. Doe, 1982). Through the cultural study of law and exploration of legal discourse—language, symbols, and content—in these landmark Supreme Court decisions, similar taxonomies and patterns of discussion emerged illustrating the intersection of law and ethics. These taxonomies were used as coding protocols and exploratory guides for the subsequent review of education leadership literature through the quantitative content analysis method. Based on this analysis, a proposal is made advocating a paradigm shift in the way that law and education scholars analyze, discuss, and critique the Supreme Court decisions affecting children's educational rights. Specifically, this article proposes the adoption of an integrated legal and ethical paradigm to study the legal discourse in the Supreme Court's education law decisions.

IntroductionWhen Supreme Court overturned doctrine of separate but equal in Brown v. Board of Education of Topeka, Kansas (Brown I) (1954) as violation of Equal Protection Clause of 14th Amendment, it fashioned decision with no immediate relief. The question of relief was set for reargument, and an invitation to submit briefs to aid in formulation of relief was extended to attorneys general of United States and states where de jure school segregation was imposed. Although reargument was held year later in Brown II (1955), Court still failed to provide clear guidelines to end de jure segregation in public schools. Instead, it required only a prompt and reasonable start toward full compliance (p. 300). Thus, whether Black student could be admitted to formerly all-White school or vice versa constituted desegregation was left unanswered. The Court provided no definitions of desegregation and no guidance regarding how it was to be accomplished.The issue was further confounded by Court's now-famous admonishment to states to use all deliberate speed in implementing mandates of Brown II (p. 301). This phrase soon took on mantel of black humor: Blacks, it was noted, wanted speed, while Whites wanted to be deliberate. Brown II, with its high-sounding phrases founded on notion that school systems would make good-faith efforts to comply with mandates of Brown I, became more symbol of victory than definitive statement or direction for remedy.Following Brown II, White community, with few guidelines from courts, moved deliberately. As would be expected, little desegregation happened. Still, even though little was happening and even less planning was being done, some progress was made. Amidst flurry of state laws obstructing desegregation, political posturing by elected officials, retaliation against civil rights lawyers, and open defiance by local citizen groups, most of southern states previously operating under de jure segregation took some affirmative actions.One of early tests of Brown arose in Little Rock, Arkansas, where desegregation plan formulated by local school authorities was opposed by state legislature and by governor, who called in National Guard to prevent Black students from attending formerly all-White high school. The governor's actions were enjoined by federal district court. Subsequently, in Cooper v. Aaron (1958), Supreme Court unanimously held that desegregation in Little Rock was to proceed and that Brown could not be overcome by state legislative actions. However, like Brown, Cooper provided no guidelines as to what constituted desegregated school. Hence, many districts proceeded with notion that accepting few assigned or voluntary Black student transfers into formerly all-White schools satisfied requirements of Brown.As years following Brown passed with little appreciable change in racial makeup of former de jure school systems, Court became impatient. In McNeese v. Board of Education for Community Unit School District 187, Chaokia, Illinois (1963), Court held that it was not necessary to exhaust administrative remedies in school desegregation cases before relief could be sought in federal court. McNeese was quickly followed by Griffin v. Prince Edward County Board of Education (1964), in which Court held that the time for mere 'deliberate speed' had run out (p. 234). Despite these stern words, however, little significant desegregation occurred.FREEDOM OF CHOICELittle was accomplished in initial desegregation efforts following Brown because no clear judicial guidelines were set forth. While few districts attempted to desegregate by allowing handful of Blacks to attend formerly all-White schools on voluntary basis, no efforts were made to assign or entice White children to attend formerly all-Black schools. …

INTRODUCTIONOn May 17, 1954, the United States Supreme Court handed down perhaps its most significant ruling of all time. In a unanimous 9-0 opinion in Brown v. Board of Education of Topeka, Kansas (Brown I) (1954), the Court held that the de jure segregation of public education based on race deprived minority children of equal educational opportunities in violation of the Equal Protection Clause of the 14th Amendment. A year later, in Brown II (1955), the Court set about dismantling segregated school systems. While subsequent rulings attacked de facto and de jure segregation in the wider arena of American society, Brown I remains unchallenged as the catalyst for systemic change. Beginning with school desegregation efforts and culminating in the civil rights movement and a generation of heightened consciousness for African Americans and other disenfranchised groups, Brown I spawned an era of equal educational opportunities.In light of the Supreme Court's monumental ruling in Brown I, this article briefly discusses more than three dozen of the cases involving court-ordered public school desegregation decided in the 40 years since 1954. Further, it provides a detailed commentary and analysis of the Court's leading opinions.A LEGAL HISTORY OF PUBLIC SCHOOL DESEGREGATIONThe history of the Supreme Court's involvement in school desegregation can be divided into four periods: the first spanning the decade from 1954 to 1964, the next from 1965 to 1979, the third from 1980 to 1989, and the last covering the early years of the 1990s.A Decade of All Deliberate Speed: 1954-1964Flushed with victories in Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents for Higher Education (1950)--companion cases that prohibited interschool and intraschool segregation, respectively, in higher education--the National Association for the Advancement of Colored People (NAACP) was set to launch a frontal attack on racial segregation in the public schools. Accordingly, its chief counsel, Thurgood Marshall, and his team of NAACP attorneys laid the groundwork for Brown I. In light of the central role Brown I occupies in American history, this case will be examined in greater detail here than the other rulings succeeding it.Brown I is cited as Brown v. Board of Education of Topeka, Kansas because the lead case was initiated there. It actually involved four class-action suits filed on behalf of African American students who were denied admission to schools attended by White children due to laws that either mandated or permitted racial segregation. The other actions originated in New Castle County (Delaware), Clarendon County (South Carolina), and Prince Edward County (Virginia). Segregation was allowed under state law in Kansas, and it was required both by the state constitutions and statutes in Delaware, South Carolina, and Virginia. The Delaware suit was an appeal from a state court action; the remaining cases sought further review of federal court rulings.The lower federal courts based their decisions to uphold de jure segregation on the pernicious standard established by the Supreme Court's 1896 ruling in Plessy v. Ferguson but which apparently originated almost half a century earlier in a Massachusetts case, Roberts v. City of Boston (1850). Only in the Delaware case did the Court order the immediate admission of African American students to schools previously attended exclusively by White children. It did so based on its finding that the schools attended by White youngsters were superior with respect to such factors as teacher training, pupil-teacher ratios, and physical plant facilities. Thus, although each action was premised on different facts and a variety of local conditions, they were consolidated on appeal in light of their common legal question. Oral arguments in Brown I were initiated in December 1952, but the Court was unable to reach a decision, seemingly because it was divided on the constitutionality of the separate-but-equal doctrine. …

This article previews the issues and arguments in the 2010-11 Supreme Court Term case, Smith v. Bayer Corp. In 2001, Keith Smith and Shirley Sperlazza filed a class action lawsuit against Bayer Corporation in West Virginia state court, alleging varying claims arising out of their use of the prescription drug Baycol. In 2008, the Federal District Court for Minnesota, overseeing the massive Baycol products multidistrict litigation, denied class certification under the federal class action Rule 23, to a proposed class of West Virginia consumers alleging economic-loss injury. Shortly after denial of the federal action, the Smith class moved for class certification in state court pursuant to the West Virginia class action rule.In response, the Bayer Corporation sought a permanent injunction enjoining the West Virginia class certification hearing, which the Minnesota federal district court granted. In January 2010, the United States Court of Appeals for the Eighth Circuit upheld this federal injunction of the West Virginia class certification hearing. This appeal involves the issue whether a federal court, consistent with the All Writs Act and the Anti-Injunction Act, could enjoin the West Virginia state court from determining whether to certify a class action after a federal court previously denied class certification in a virtually identical class action.The Court will address two major issues: (1) When a federal court in an MDL proceeding denies class certification of a statewide class action, may the court pursuant to the All Writs Act and the Anti-Injunction Act enjoin putative class members who were represented in the federal hearing from seeking class certification in state court for the same class action?, and (2) When a federal court in an MDL proceeding denies class certification of a statewide class action, is it impermissible for the federal court to issue an injunction restraining absent class member from seeking state class certification, where those absent class members were not afforded the due process protections required if certification had been granted?In deciding the Smith appeal, the Supreme Court will not forge any new ground in interpreting the Anti-Injunction Act or the All Writs Act. The appeal basically presents a fairly straightforward question concerning the appropriate exercise of the relitigation exception, in the context of dual federal-state class action practice. However, the Court’s Smith decision will have important implications for federal and state class action litigation.In the past twenty years, burgeoning of class action litigation in both federal and state court has given rise to problems relating to intersystem adjudication of complex litigation. There are no legal restrictions on litigants from filing parallel actions in both federal and state court, and the Anti-Injunction Act is a relatively weak mechanism for restraining parallel state proceedings.In the past two decades, federal courts have attempted to better manage duplicative class action litigation through increased use of the MDL procedures, which enable consolidation of all similar cases throughout the federal system, for coordinated pre-trial discovery and other proceedings. MDL procedure has proved to be a very effective mechanism for resolving massive litigation. In addition, Congress manifested an interest in channeling class action litigation into federal courts by enactment of CAFA, which created new federal jurisdiction for class actions and provided a vehicle for removal of class actions from state court into the federal system.Notwithstanding these developments, litigants still may pursue class action relief under state class action rules. The Smith appeal confronts the Court with the important question whether state litigants are free to seek a different class certification decision in a state court, once a federal court has determined class certification is not appropriate, and should be denied. As Bayer suggests, such a ruling would provide litigants with an incentive to keep filing state class actions until they find a judge who decides differently than the federal court. For policy reasons alone, Bayer contends this is an untenable conclusion.The Smith plaintiffs, on the other hand, suggest this case tests the very heart of federalism: the notion that state courts are free to determine issues according to their own interpretation of their laws and procedures, even where those laws and procedures are identical to federal rules.In the end, the Court’s opinion is likely to turn on a careful, nuanced analysis of the requirements of preclusion doctrine, with careful attention to the parties, issues, and nature of the class proceedings. We also may expect the Court to supply some further elucidation of what due process requires, in the class action context, to give preclusive effect to a class certification denial to nonparties to a prior litigation.

Treating incompetent defendants: the Supreme Court's decision is a tough Sell.

Policy Points Since its founding, the Supreme Court has played a major role in defining the parameters of governments' public health powers and the scope of individual health-related rights. Although conservative courts have been less favorable to public health objectives, federal courts have, for the most part, advanced public health interests through consensus and adherence to the rule of law. In establishing the current six-three conservative supermajority, the Trump administration and the Senate shifted the Supreme Court dramatically. A majority of Justices, led by Chief Justice Roberts, did shift the Court in a decidedly conservative direction. It did so incrementally, guided by the Chief's intuition that the Institution itself should be preserved, mindful of maintaining public trust and appearing outside the political fray. That has all changed because Roberts' voice no longer holds sway. Five members of the Court have displayed a willingness to overturn even long-held precedent and dismantle public health policy in favor of the Justices' core ideological tenants-notably the extensive reach of the First and Second Amendments and a parsimonious view of executive and administrative action. Public health is vulnerable to judicial rulings in this new conservative era. This includes classic public health powers in infectious disease control as well as reproductive rights; lesbian, gay, bisexual, trans, queer or questioning, and others (LGBTQ+) rights; firearm safety; immigration; and climate change. Congress has the power to curb the most extreme actions of the Court while still adhering to the vital ideal of a nonpolitical branch. That does not require Congress itself to overreach (such as by "packing" the Supreme Court, as Franklin Delaeno Roosevelt once proposed). Congress could, however, 1) disempower lower federal judges from issuing injunctions that apply nationwide, 2) limit the Supreme Court's so-called shadow docket, 3) alter the way that presidents appoint federal judges, and 4) set reasonable term limits for federal judges and Supreme Court Justices.

Reviewed by: A Storm Over This Court: Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education by Jeffrey D. Hockett Kevin J. Mcmahon (bio) A Storm Over This Court: Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education. By Jeffrey D. Hockett. (Charlottesville: University of Virginia Press, 2013. Pp. 280. $39.50 cloth; $39.50 ebook) On May 17, 2014, the United States celebrated the sixtieth anniversary of one of the Supreme Court’s most significant decisions, [End Page 140] Brown v. Board of Education. Not surprisingly, the Brown decision is also one of the most studied of the court’s rulings. Indeed, many scholars have sought to understand both the court’s path to Brown and its far-reaching implications. In his book, A Storm Over This Court, Jeffrey Hockett assesses political science (and some legal) scholarship on Supreme Court decision-making through the lens of Brown. In doing so, he sheds a great deal of light on both this scholarship and the decision-making process of the justices who reached the unanimous ruling. Because much of the book takes the reader through a significant amount of scholarship on Supreme Court decision-making, the uninitiated will find reading much of the book tough sledding. It may work well in a graduate or advanced undergraduate course on judicial decision-making, but even the best undergraduate students may struggle with some of the writing, which contains far too many sentences that are overly long and/or unnecessarily dense. Leaving the writing aside, Hockett should be commended for attempting to apply the various approaches of Supreme Court decision-making to this case, in fact to the votes of the individual justices in this one case. Even readers very familiar with these works and with the Brown decision itself will gain insight in the pages of this book. Hockett begins his analysis with the attitudinal model, concluding after a thorough examination of the “justices’ notes and memoranda regarding the conference deliberations” that the justices’ attitudes on segregation do not necessarily explain their votes in Brown (p. 58). Next, Hockett considers the “strategic alternative.” While helping to clarify some aspects of the ruling, particularly Chief Justice Earl Warren’s significant role in leading the court to unanimity, this approach ultimately fails to explain the decision entirely as well. Hockett is more convinced by a constitutive understanding of Brown, particularly with regard to three justices who had demonstrated pro-segregation thinking before ascending to the high bench. Hockett next examines arguments—made most prominently by Mary Dudziak—advancing a Cold War thesis as a motivating factor in the justices’ ruling. He, [End Page 141] however, is not completely convinced. To him, the centrality of the international tensions at the time only helps to explain a few of the justices’ votes. Finally, Hockett assesses the work of scholars—typically identified as regime politics or political-regime scholars—who emphasize domestic reasons for the court’s march toward its historic 1954 desegregation decision. Again, while he believes they help explain some factors about Brown, they do not explain the ruling entirely. As those familiar with these models know, they were mainly devised to explain scores of Supreme Court decisions, not just the votes of each individual justice in each individual case. And for this reason, Hockett’s application of them exclusively to the Brown decision does not always work for some models as it does for others. For example, in evaluating the regime-politics model, he seems to miss its real point, namely the political construction of law. In other words, regime-politics scholars—and I certainly include myself here—are less concerned about explaining why each individual justice decided a case the way he or she did, and more interested in explaining the political dynamics that constructed an institutional mission on the court that produced a certain judicial result. In the end, the justices may reach a particular decision for a range of reasons. Understanding this likelihood, regime-politics scholars stress that such decisions—especially politically salient ones—will be consistent with the essence of the court’s mission as constructed by a governing regime of a particular...