Who’s behind the integration decision?

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MARK TUSHNET teaches constitutional law at Harvard Law School.

THE SEATTLE school integration case decided by the Supreme Court last month was brought in the name of a group called Parents Involved in Community Schools on behalf of Jill Kurfirst and her ninth-grade son. But it was a little-known, Sacramento-based organization called the Pacific Legal Foundation — a conservative public interest law firm involved in the case from the beginning — that developed many of the legal arguments five justices ultimately found persuasive.

Where did the foundation come from? The story begins with former Justice Lewis F. Powell. Shortly before he was nominated to the court in 1971, Powell, then a Virginia lawyer, wrote a memo to a friend at the U.S. Chamber of Commerce titled “Attack on the American Free Enterprise System.” In it, Powell worried that liberal groups had nurtured specialist lawyers and developed litigation strategies to defend government regulation. Businesses, he argued, were suffering because they had a “disposition to appease” and weren’t able to present a countervailing view of what constituted the public interest.

Powell’s memo prodded the business community to help create a number of not-for-profit law firms devoted to arguing a conservative point of view. Ronald Zumbrun and Raymond Momboise, former advisors to California Gov. Ronald Reagan, founded the first one — the Pacific Legal Foundation — in 1973. On its website today, the foundation says it exists to fight “tyranny” engendered by “overzealous bureaucracies and government red tape” and that it is a foe of “government regulators and environmental extremists.” Other issue areas: fighting racial preferences, combating eminent domain laws and encouraging government to take economic impact into account when designating critical habitat for endangered species.


After some initial enthusiasm, big business found these new public interest law firms less useful than it had hoped. The firms’ case selection policies were erratic, and the winnable cases they brought — mostly against environmental regulations and land use laws — had few implications for the business community’s larger concerns.

Big business soon turned to a newly developed, specialized Supreme Court bar in Washington (of which Chief Justice John G. Roberts Jr. was a leading member) to pursue its more important priorities: tort reform through judicial restrictions on punitive damages and interpreting national statutes in a business-friendly manner to reduce and eliminate penalties for business misconduct. Conservative public interest law firms played only minor roles in these cases.

By the time Chief Justice William H. Rehnquist died in 2005, most of the initiatives championed by the conservative public interest law firms — restricting federal power, putting constitutional limits on regulation and fighting environmental regulation — had hit a wall.

Still, Pacific Legal Foundation and other such law firms continued to operate, funded by donors interested in a conservative agenda. But always needing to raise more money from outsiders affected what the firms could do. They had to pick cases that garnered a lot of publicity, which meant they were not always the best for giving constitutional law a conservative cast. You can win cases (and publicity) if you can find “horror stories” about government regulation, but winning such cases makes few inroads toward more reasonable government regulations.

The Seattle case shows that conservative public interest law firms can win some big cases. These firms, however, are notorious for lacking follow-through. They get publicity from winning in the Supreme Court, not from slogging through the lower courts time and again to define the contours of the law on the ground. Winning in the Supreme Court may excite donors, but haggling with school boards over how to enforce the court’s decisions does not.

The foundation’s press release called last month’s ruling “the most important decisions on the use of race since Brown vs. Board of Education.” Five years earlier, Clint Bolick, a co-founder of the Institute for Justice, another conservative public interest law firm, hailed the Supreme Court’s decision upholding the constitutionality of Cleveland’s school voucher program as a Brown for the 21st century.


These invocations call for some historical perspective. What’s happened with school vouchers since 2002? Basically, nothing. Indeed, what happened after Brown itself? Again, basically nothing — for a decade. As late as 1964, only a handful of African American children in the deep South attended schools with whites.

Things changed after 1964 not because of Brown but because that was the year Congress enacted the Civil Rights Act. It also made significant amounts of federal money available to schools for the first time, and threatened to deny that money to schools that didn’t desegregate.

Brown began to matter because the NAACP was determined to see the decision enforced, because its lawyers had organizational staying power and because the political environment favored integration.

We won’t know for a while what the fate of this year’s integration rulings will be. But the track record of conservative public interest law firms suggests that they won’t carry through on their victory. And what the political environment will be over the next decade is in our hands, not theirs.