The Liberty Papers

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.