FACT SHEET: The Alito and Roberts Effect and Voluntary Integration

Meredith v. Jefferson County Board of Education and Community Schools v. Seattle School District

Fifty-three years after Brown v. Board Of Education, the Supreme Court’s decisions in Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District undermine the promise of Brown while blatantly ignoring the continuing impact of racial inequality in this country. In a decision authored by Chief Justice Roberts and joined by Justice Alito, the Supreme Court struck down two voluntary school integration programs, ruling that race cannot be used as a factor in assigning children to particular public schools.

The Court’s decision impedes diversity in local schools and limits the ability of local school districts to make decisions about what works best for their own communities.  By declaring race-based school integration plans unconstitutional, the Court has undone years of precedent and disregarded settled federal law. 

Despite their laudatory descriptions of Brown in their confirmation hearings – and their promises to follow precedent, Chief Justice Roberts and Justice Alito have taken the first opportunity they had to undercut the reasoning of that landmark case.  Despite the rhetoric, their records were better indicators of what they would do on the Court.

In their confirmation hearings, John Roberts and Samuel Alito each testified that they would give significant weight to precedent and respect stare decisis.  Both Justices also praised Brown v. Board of Education.  Justice Alito described Brown as “one of the greatest, if not the single greatest thing, that the Supreme Court of the United States has ever done.”  Chief Justice Roberts said the case “changed the course of American history” and put the Supreme Court “in the role of vindicating the vision of justice that the framers enacted in the Constitution.”

Chief Justice Roberts’ Record:

• As a lawyer in the Reagan administration, Roberts defended the Reagan Administration’s anti-desegregation policy, writing, “Experience has demonstrated that [forced racial] busing does not promote desegregation but actually increases racial imbalance by causing many parents who can afford to do so to take their children out of the public schools.”  In a subsequent memorandum, Roberts wrote that, “busing promotes segregation rather than remedying it, by precipitating white flight…it is within Congress’ authority to determine that busing is counterproductive and to prohibit federal courts from ordering it.” [Memorandum from John G. Roberts, to The Attorney General, re: Summary of Material Sent by Arthur Flemming, Chairman of the U.S. Commission on Civil Rights (Aug. 25, 1981); Memorandum from John G. Roberts, to Fred Fielding, re: Proposed Justice Report on S. 139 (Anti-Busing Bill) (Feb. 15, 1984)]
• As a lawyer in the Solicitor General’s Office, Roberts co-authored two amicus briefs arguing in favor of limiting court-ordered desegregation plans.  [Freeman v. Pitts; Oklahoma City Public Schools v. Dowell]
• As a lawyer in the Solicitor General’s Office, Roberts supervised the government’s participation in United States v. Fordice, an important case involving segregation in Mississippi state universities.  Roberts approved the Justice Department’s brief asserting that the state had no “independent obligation flowing from the Constitution to correct disparities between what was provided historically black schools—in terms of funding, programs, facilities and so forth—and what was provided historically white schools.”  The brief also argued that Mississippi was not required to redress the discrepancies, as long as it did not affect students’ freedom to choose which school to attend. [Brief for the United States, United States v. Fordice]

Justice Alito’s Record:

• As a lawyer in the Reagan Administration, Alito opposed race-conscious policies saying he was “particularly proud” of his efforts to squelch affirmative action policies. [Memorandum from Mark Sullivan, Associate Director, Presidential Personnel, to Mark Levin, Associate Deputy Attorney General, re: Samuel A. Alito, Jr., Deputy Assistant Attorney General, SES I (Dec. 12, 1985)]