The Supreme Court Just Took Us Back to the Days of Segregation

By Adam Bonin, Daily Kos. Posted June 29, 2007.

In a 5-4 decision authored by Chief Justice John Roberts on Thursday, the Supreme Court told local school districts that they cannot take even modest steps to overcome residential segregation and ensure that schools within their diverse cities themselves remain racially mixed unless they can prove that such classifications are narrowly tailored to achieve specific educational benefits.  But they swear they haven't overturned Brown v. Board of Education. Writes the Chief Justice:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again.even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis ... is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

To which, in sad dissent, Justice Stevens responded:

There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." This sentence reminds me of Anatole France's observation: "[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions....

The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision.

The court's 185 page opinion is here, and I'm still digesting it.  Judge Kennedy concurred in the result but not in parts of the opinion, holding that eradicating racial isolation could be a compelling interest, but that the school districts had not proven the need for racial classifications here.  [The other four conservative justices held that racial balance, as a goal in and of itself, can never be constitutionally valid.]  Otherwise, he bloviates: "Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin."

In another separate concurrence, Justice Thomas explains that schools in which blacks are racially isolated might actually be a good thing for such students, and gets snippy with the Court's liberals: "Regardless of what Justice Breyer's goals might be, this Court does not sit to 'create a society that includes all Americans' or to solve the problems of 'troubled inner city schooling'.  We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial imbalance, I will not defer to legislative majorities where the Constitution forbids it.... Justice Breyer's good intentions, which I do not doubt, have the shelf life of Justice Breyer's tenure. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as Justice Breyer's."

Both Seattle and Louisville are racially diverse cities, although not each neighborhood is a diverse one.  So to ensure that the schools within their districts each remains representative of the city as a whole, the cities have used race as a factor in determining school assignments so that no school bends too far away from the city's overall demographics in its composition.  In Seattle, for example, schools that are at least 55 percent white give preference to nonwhite applicants, and those that are at least 75 percent nonwhite give preference to whites.

Today's decision is a conservative activist one, gutting Brown v. Board of Education and its progeny and supplanting local school districts' ability to determine what's best for their students.  As Justice Breyer's opinion on behalf of the four dissenters begins, and it's a majestic one:

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