Lewis Powell’s oligarchic legal attack machine continues to target Washington schools with manufactured legal battles.

by Austin Field

Last month marked the 70th anniversary of Brown v. Board of Education, the unanimous 1954 Supreme Court opinion declaring racially segregated schools unconstitutional. Brown v. Board’s 70th anniversary is a somber one, as one of America’s most celebrated legal decisions faces a legacy of failure. The Supreme Court justices who unanimously condemned school segregation and white supremacy in 1954–and Thurgood Marshall, who argued the case before he joined the court–would be horrified to learn that American schools are now more racially segregated than at any point since the late 1960s. 

A small group of white Seattle parents played an outsized role in Brown’s failure. In 2007, they allied with powerful conservative attorneys to make Brown unenforceable in Parents involved in Community Schools v. Seattle School District No. 1 (PICS). US Supreme Court Chief Justice John Roberts, a lifelong foe of legal efforts to combat racism, used Seattle parents’ lawsuit to attack the civil rights movement itself—part of a plan begun decades before Seattle parents brought their lawsuit.

The story of PICS illustrates how powerful interests have manipulated the court system to roll back hard-won civil rights victories without explicitly overruling treasured precedents like Brown. Today, Seattleites live with the results of that attack: our local schools are as segregated as they were under the Nixon Administration. As our long-segregated school system braces for a round of school closures—closures that I believe are all but guaranteed to harm the very students Brown sought to help—we must critically examine how Seattle parents became pawns in a much larger fight.

Decades of Reactionary Planning Laid the Groundwork to End School Integration

There are a few excellent articles, including a 2016 Stranger article, summarizing Seattle’s flawed, decades-long attempts to desegregate schools, so I’ll skip to the late 1990s. Mandatory busing collapsed in the face of attacks from both reformers and conservatives, and by 1999 the district had adopted a new plan allowing students to attend any public school in Seattle—provided the school had space. If too many students chose a particular school, then the district used several factors as tie-breakers. The second-most important tie-breaker was racial diversity, which specifically considered the student’s race and the racial demographics of their desired school. 

Powerful, reactionary interests saw Seattle Public Schools’ milquetoast efforts to encourage school diversity as an opportunity to roll back the civil rights movement, including Brown v. Board of Education. Their campaign began in 1971, when they coalesced behind a plan outlined by Lewis Powell Jr.—a plan that ultimately included Seattle parents’ PICS lawsuit. 

In 1971, Powell was a wealthy attorney who sat on 11 corporate boards, including Philip Morris. He’d already refused to join the US Supreme Court, preferring to add to his considerable fortune. He spent most of his career vociferously defending Philip Morris’s efforts to deny smoking was harmful–arguing the corporation had a First Amendment right to deceive the public. He wasn’t a fan of everyone’s First Amendment rights, though; he harshly criticized Martin Luther King Jr.’s nonviolent civil disobedience campaigns. 

Powell’s pro-corporate, anti-civil rights bona fides attracted the US Chamber of Commerce, which commissioned him to write a memo outlining strategies for rolling back the civil rights movement, the labor movement, the consumer rights movement, the environmental movement, and other threats to oligarchy–all of which seemed, briefly, to be winning. 

Powell delivered, writing 6,400 words identifying “[l]labor unions, civil rights groups and now public interest law firms” as major threats to corporate power. Although unions had only haltingly embraced the call for racial equality, by the 1950s some powerful labor leaders understood that ending racism and ending corporate oligarchy were the same fight—a fight to redistribute national wealth more equitably. Recognizing their common interests, the United Auto Workers partially financed the NAACP’s fight to get Brown v. Board of Education to the Supreme Court. 

Powell correctly viewed labor unions and civil rights groups as existential threats to an economic system that had made him extremely wealthy. He advised corporations to fight back, in part, by creating a network of foundations and nonprofit law firms to defeat the civil rights movement in the courts. He also finally, grudgingly, accepted Nixon’s second invitation to become a Supreme Court Justice—allowing him to rule on legal arguments advanced by these new corporate legal nonprofits. One of those nonprofits, the Pacific Legal Foundation, became the driving force behind the PICS lawsuit.

Powerful Interests Manufactured a Grassroots Lawsuit

The standard story of PICS typically begins with Kathleen Brose, a parent outraged after her daughter was assigned to Franklin High School—then only 6% white—instead of overwhelmingly white Ballard High School. Brose, so the story goes, then founded a nonprofit, Parents Involved in Community Schools, to fight for her daughter all the way to the US Supreme Court. 

But lawsuits don’t get to the Supreme Court without someone spending millions of dollars. Fortunately, attorney Cara Sandberg dug deep into the powerful, wealthy interests who manufactured the PICS suit. While a group of frustrated parents did try organically to challenge the district’s racial tie-breaker, most of them had no interest in suing the district. The few who did, including former Republican Congressman John Miller, formed PICS. 

Miller convinced the Seattle office of powerful corporate law firm Davis Wright Tremaine to represent PICS pro bono. Harry Korrell, who was—and remains—a Davis Wright Tremaine partner, represented PICS for free. Korrell is a longtime member of the Federalist Society, one of the corporate-backed groups created to execute Lewis Powell’s oligarchic, anti-civil rights strategy. He was assisted by lawyers from another such group: the Pacific Legal Foundation. The Foundation provided both legal arguments for Korrell and media coaching for Brose. Brose, a more relatable figure than the elite Miller, was made the public face of the lawsuit. 

Backed by corporate lawyers and corporate nonprofits, PICS lost in lower courts but found a sympathetic ear at the US Supreme Court in 2007. Chief Justice John Roberts, like Korrell a veteran of Lewis Powell’s corporate legal movement, wrote the leading opinion. Roberts didn’t explicitly overrule Brown and bring back Jim-Crow-style mandatory school segregation. Instead, he banned government policies intended to proactively integrate schools. Under Brown, school districts can’t force all the white kids into one school and all the Black kids into another. But, under Roberts’s PICS ruling, Seattle couldn’t do anything intended to make schools more racially balanced. 

Roberts’s ruling rested on two false premises. First, he argued that the Constitution didn’t allow Seattle to consider race in school admissions because Seattle school segregation resulted from residential segregation caused by individual choices—not government policies. This laughably inaccurate claim needs no debunking, though law professor Richard Rothstein thoroughly shredded it in his book the Color of Law. 

Second, and more perniciously, Roberts willfully misinterpreted Brown, turning a color-conscious decision into a colorblind one. Roberts argued that Brown condemned ever racially classifying students. But Brown was not about classifying all children by race, Brown was about classifying Black children by race. Roberts failed to understand—or deliberately ignored—that Brown prohibited classifying and segregating Black students because whites were using school segregation to perpetuate the myth of Black inferiority. Roberts used PICS to transform Brown from a unanimous condemnation of white supremacy into a gag order preventing schools from even acknowledging obvious racial disparities. 

Roberts’s false claims yielded real results. A few optimists tried to argue that Justice Anthony Kennedy’s tie-breaking opinion—which attempted to salvage Brown’s legacy by allowing some limited school integration policies—was the actual law of the land. But Justice Kennedy is gone, and his successors do not believe that the Constitution allows schools to undo generations of racial discrimination. 

Seattle bowed to the court and abandoned its halting school integration efforts. Davis Wright Tremaine added insult to injury, spending years trying to force the Seattle Public Schools to pay $2 million in Borse’s legal fees. 

Lewis Powell’s corporate legal attack machine continues to target Washington schools with manufactured legal battles, from the Bremerton praying coach case to moral panics about “critical race theory.” Their goal isn’t just to end school integration, it’s to create permanent oligarchy by destroying public education entirely, subsidizing private school tuition for wealthy families, and depriving everyone else of a quality education.

PICS was part of this oligarchic campaign. Wealthy elitists used Seattle parents to gut Brown as part of a decades-long campaign designed to stamp out any whisper of a simple, obvious idea: the current distribution of wealth and power in America is unbelievably, violently unjust. The elitists seem to be ascendant, seizing control of school boards nationwide and dominating the Supreme Court. But Brown isn’t just a court decision. Brown is, and always will be, a simple, powerful acknowledgement that white supremacy is evil. Brown reminds us of a period of vibrant, brilliant, joyful, successful resistance—a time when the powerful and their lackeys were justifiably, gloriously afraid of losing their ill-gotten gains. We can make them afraid again.

The Stranger