Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“My definition of a free society is a society where it is safe to be unpopular.”     Adlai E. Stevenson

June 28, 2007

Supreme Court Severely Limits Affirmative Action

by Doug Mataconis

In two decisions today the Supreme Court severely limited the ability of public school systems to use race as a factor in assigning students to schools:

WASHINGTON — The Supreme Court on Thursday rejected integration plans in two major public school districts but left the door open for the limited use of race to achieve diversity in schools.

The decision in cases affecting how students are assigned to schools in Louisville, Ky., and Seattle could imperil similar plans in hundreds of districts nationwide, and it further restricted how public school systems may attain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court’s judgment. The court’s four liberal justices dissented.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said.

Yet Justice Anthony Kennedy would not go as far as the other four conservative justices, saying in a concurring opinion that race may be a component of school plans designed to achieve diversity.

To the extent that Roberts’ opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, “I disagree with that reasoning.”

“A district may consider it a compelling interest to achieve a diverse student population,” Kennedy said. “Race may be one component of that diversity.”

He agreed with Roberts that the plans in Louisville and Seattle violated constitutional guarantees of equal protection

Because of Kennedy’s unwillingness to sign on to Roberts’ opinions, of course, the decisions do not go as far as they might have, but it is certainly a substantial step toward ending the idea that it is ever permissible for the government to discriminate on the basis of race.

Of course, not everyone on the Court felt the same way as Roberts, which led to an interesting little exchange between Justice Breyer and Justice Scalia on the legacy of the Court’s decision in Brown v. Board of Education:

Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts’ opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

“To invalidate the plans under review is to threaten the promise of Brown,” Breyer said.

While Roberts said the court was being faithful to the Brown decision, Justice John Paul Stevens in a separate dissent called the chief justice’s reliance on Brown to rule against integration “a cruel irony.”

Justice Clarence Thomas, the court’s only black member, wrote a separate opinion endorsing the ruling and taking issue with the dissenters’ view of the Brown case.

“What was wrong in 1954 cannot be right today,” Thomas said. “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 decisionmaking is unconstitutional.”

I think Thomas clearly has the better argument here. The reason that the Court’s decision in Brown was correct is because it was wrong from the Topeka Board of Education to discriminate against students based on their race. A plain reading of the 14th Amendment should have made that clear. Unfortunately, the Court’s opinion, along with decades of previous 14th Amendment case law, muddied the waters as much as it cleared them up because it relied more on social science studies of the detrimental impact of segregated schools on black children than it did on the plain fact of the matter that the 14th Amendment was clearly intended to make the Constitution colorblind.  We’ve been paying for the Court’s mistaken reasoning in that case ever since.

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  1. If districts are not to use race as a factor in achieving diversity, what are they supposed to use? Where is Solomon when we need him.

    Probably some will say that diversity is not a stated goal of our government but preventing discrimination in the disbursing of government services is.

    Sounds simple until one tries to get that concept into law.

    Comment by ron stratton — June 28, 2007 @ 12:13 pm
  2. Ron,

    Count me among those who questions the value of this so-called “diversity”

    But whether it’s a good idea isn’t the issue. The 14th Amendment is clear on what the government cannot do.

    Comment by Doug Mataconis — June 28, 2007 @ 12:15 pm
  3. Desegregation Opinions: Blogs and Media React…

    [This is a round-up post on the just-released decisions striking down Seattle and Louisville’s desegregation plans. Other posts in the series:

    Reaction to C.J. Roberts’ opinion

    Reaction to Justice Stevens’ dissent

    Reaction to Justice Kenned…

    Trackback by The Debate Link — June 28, 2007 @ 2:31 pm
  4. You know if getting into a school depended on a lottery system, some whites would still complain that blacks were allowed to participate.
    When the clock turns back, next time, there may not be a Martin Luther King Jr. to lead us. Thoes that do will not give a sh*t how high minded the strict constitutionalist were.

    Comment by VRB — June 28, 2007 @ 5:27 pm
  5. Brown v Board of Education’s Original Intent…

    The Brown decision, perhaps more than any other event in our history, gave rise to the modern conservative movement….

    Trackback by Jon Swift — June 29, 2007 @ 10:23 am
  6. “Simply because the school districts may seek a worthy goal doesn’t mean that they are free to discriminate on the basis of race to achieve it.”

    How is this a bad thing?

    People are not allowed to discriminate based on race, yet when the Supreme Court says “Don’t discriminate based on race.” People get angry???

    I am so confused.

    Comment by Mickey — June 30, 2007 @ 11:50 am

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