Ronald Turner (University of Houston Law Center) has posted Plessy 2.0 (Lewis & Clark Law Review, Vol. 13, p. 861, 2009) on SSRN. Here is the abstract:
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In its infamous 1896 decision in Plessy v. Ferguson the Supreme Court of the United States held that a Louisiana statute mandating separate but (in reality not) equal railway accommodations for black and white passengers did not violate the Fourteenth Amendment's Equal Protection Clause. One hundred and eleven years later, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court held that the same clause prohibited racial integration and diversity plans voluntarily adopted by public school districts in Seattle, Washington and in the Louisville, Kentucky metropolitan area. This Article argues that Chief Justice John Roberts' plurality opinion in Parents Involved is reminiscent of, and indeed resurrects certain aspects of, Plessy's pre-1900 equal protection analysis, as both decisions ignored racial realities and social meanings of race and insulated racial hierarchy and the racial status quo from integrative change. Plessy's and Parents Involved's analytical commonalities and formalistic approaches to, and constructions and constrictions of, the Equal Protection Clause reveal the ways in which constitutional law and history can be circular rather than linear, regressive rather than progressive.
