Race-based decisions
By a slim 5-4 majority, cobbled together with a concurring opinion by "swing justice" Anthony Kennedy that still leaves this area of law subject to considerable interpretation, the U.S. Supreme Court on Thursday limited the efforts of local public schools to use race as a determinant as they seek "balance" in assigning students to classrooms.
The court voted 5-4 to strike down voluntary school integration plans in Louisville and Seattle, a decision that could affect similar plans in use by hundreds of cities and counties. (Districts under federal orders to integrate are unaffected.)
The courts thus sided with the Bush administration, which had in turn taken the side of parents arguing that racial diversity may be a noble goal, but that it can be pursued only through race-neutral means.
The four liberal justices dissented in an unusually animated fashion, arguing the decision betrays the landmark 1954 Brown v. Board of Education ruling that led to the end of state-sponsored school segregation.
Chief Justice John Roberts wrote in his majority opinion that by classifying students by race, the school districts actually perpetuated the unequal treatment that the Brown decision outlawed. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice Roberts said.
Justice Clarence Thomas, the court's only black, wrote a separate concurring opinion, taking issue with the dissenters' view of the Brown case.
"What was wrong in 1954 cannot be right today," Justice Thomas wrote. "The plans before us base school assignment decisions on students' race. Because 'our Constitution is colorblind and neither knows nor tolerates classes among citizens,' such race-based decision-making is unconstitutional."
Citing Brown to rule against integration was "a cruel irony," responded Justice John Paul Stevens in his dissent.
Justice Anthony Kennedy went along with the court's four most conservative members in rejecting the Louisville and Seattle plans, but seemed to be trying out for a role in Cirque du Soleil as he bent and twisted, writing in a separate concurring opinion that taking note of race may, indeed, still sometimes form a component of school efforts to achieve "diversity."
To the extent that Justice Roberts' opinion could be interpreted to foreclose the use of race in any circumstance, Justice Kennedy said, "I disagree with that reasoning. ... A district may consider it a compelling interest to achieve a diverse student population. ... Race may be one component of that diversity." Observers said it appeared Justice Kennedy may have in mind using racial population statistics in deciding where to build a new school or how to draw attendance boundaries.
Here we go again.
The opinion was the first on this divisive issue since 2003, when a different 5-4 majority said it was OK to use limited consideration of race in college admissions to attain a diverse student body. Since then, Justice Sandra Day O'Connor, who approved of the limited use of race, retired. Her replacement, Justice Samuel Alito, joined Thursday's majority.
Justice Kennedy's middle-of-the-road contortions provided room for the advocates of continued racial counting to claim a partial victory, arguing that Justice Kennedy's dicta show a majority of the justices still actually support the continuing use of race-conscious measures to integrate public schools.
Such maneuvering, such disclaimers and half-heartedness are regrettable, because they assure "clarifying" cases in this troublesome area of law will be back to haunt us again.
Wiping out subtle, personal prejudice is a fool's errand. If there are any school districts in this country still purposely attempting to segregate students by color so as to provide lesser educational opportunities to non-whites -- which was indeed an abomination -- it would be interesting to see them named.
Thursday's dance of the concurring opinions was far from inspiring. But when the smoke had cleared, the court had taken a big step in the right direction.
