Justice Powell's Critical Turn in Education Policy

• In Event: 72.024 - Pivotal Landmarks: Turning to Life History as a Guide to Contemporary Educational Policy and Practice

Abstract

This paper is part of a larger body of work on the education decisions issued by Supreme Court Justice Lewis Powell. Nominated by President Nixon in 1971, Powell served 16 years on the high court. During that time Powell provided the pivotal vote in critical cases on affirmative action, school funding, desegregation, and teachers’ rights.

I examine Justice Powell’s work on three cases that the Supreme Court considered between 1973-1974 (San Antonio v. Rodriguez, Keyes v. School District No. 1, and Milliken v. Bradley). These decisions shaped policy regarding desegregation and school funding for decades. I compare Powell’s opinions to locate positions he held concerning local control of schools, busing, and business interests regarding public policy. I compare these positions with Powell’s earlier stance on desegregation as a member of the Richmond school board (1950-1961) and the Virginia State Board of Education (1961-1968), and to the principles articulated in his Chamber of Commerce Memorandum (1971). I argue that Powell’s San Antonio decision (failing to provide for equitable school funding across districts) combined with the Milliken decision (striking down interdistrict desegregation plans) led to a more inequitable public school system, the opposite of what Powell claimed to value.

In Keyes Powell agreed with civil rights activists that distinctions between de jure and de facto segregation were, for all practical purposes, meaningless. While a majority of the Court leaned in that direction in conference, they were sharply divided on the remedy. Only Powell took the occasion to address busing. The next year he provided the critical fifth vote in Milliken, striking down the metropolitan Detroit interdistrict busing policy and beginning the long judicial retreat from court-mandated school desegregation.

Writing the majority opinion for a deeply-divided court in San Antonio, Powell explained: “at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.” Dodging the direct question of how anything could be a little bit equal, Powell continued, “in view of the infinite variables affecting the educational process, [no]… system [can] assure equal quality of education except in the most relative sense.”

Having swept away claims that wealth could operate as a suspect class, Powell addressed the majority’s finding that education is not a fundamental right of citizens. This ruling was necessary if the Court were to avoid a strict scrutiny test that, Texas officials admitted would have produced a decision supporting Rodriguez. It proved a devastating blow to advocates for equitable school funding.

Justice Powell’s opinions in these cases were consistent with a life lived as a pragmatic, conservative, White Virginian. The decisions did not fit together coherently, however, if advancing justice through schooling was the aim.

Methods: Archival research.

Significance:
These key rulings constitute a legal turn toward a public school system ever more divided by race and class. While scholars are aware of this general trend, this paper traces Powell’s pivotal role in moving the Court in that direction, juxtaposed against traces of Powell’s biography. Given the implications of these court decisions for contemporary education, attention from historical scholars is overdue.

Author

• Karen L. Graves, Denison University