Stuart Taylor on Race and the Court

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent—which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes—thundered that “to invalidate the plans under review is to threaten the promise” of “true racial equality” that Brown v. Board of Education established. Breyer added that the position of the four most-conservative justices “would break that promise.”

Breyer’s apocalyptic language notwithstanding, the decision may not be the watershed that he and the other three liberal dissenters feared. The majority opinion of Chief Justice John G. Roberts—especially the portion that the man in the middle, Justice Anthony Kennedy, declined to join—exuded skepticism of all government programs that consider the race or ethnicity of individuals in allocating opportunities or benefits. The decision will make it harder to sustain affirmative-action programs as well as race-based school assignments. It also confirms the widely held view that the closely divided court has moved a notch or two to the right on race issues since Justice Samuel Alito replaced Justice Sandra Day O’Connor.
The immediate impact will be limited, however. The race-based assignments that the justices struck down in Seattle and Jefferson County, Ky., did not foster much diversity in any event. Roberts observed that they changed the assignments of only a “minimal” percentage of students. Seattle had done almost nothing to relieve minority isolation at the city’s two least-integrated high schools, which remain 90 percent nonwhite. It had also approved an overtly segregated “African-American Academy.” Broadly speaking, there do not appear to be very many other programs around the country where local officials promote integration through race-based assignments.

Kennedy’s take is perhaps the most interesting—and in any event is now the law of the land. Casting the critical fifth vote for the majority, he wrote an ambiguous concurrence. It leaves school districts and lower courts that are determined to promote integration some room to experiment, at least until another shoe drops. Kennedy rejected what he saw as the unduly extreme positions of conservatives and liberals alike. He sided with the dissenters on one crucial point by stressing that school districts have “a compelling interest … in avoiding racial isolation” of minority students and achieving “a diverse student population.” He also complained that portions of the Roberts opinion “imply an all-too-unyielding insistence that race cannot be a factor.” And he rejected the idea that the Constitution is unyieldingly “colorblind.”

Nonetheless, Kennedy joined in striking down the racial-assignment plans in Seattle and Jefferson County. He felt that their detailed rules were too susceptible to abuse and he came close to saying that there is no justification for public schools ever to tell individual students that they cannot attend their schools of choice because they are the wrong color. He also joined Roberts in chastising the dissenters for alarmist rhetoric, for distorting the court’s precedents (which the dissenters accused the majority of doing), and for taking a position that would perpetuate raced-based decision making in all walks of life.

The programs struck down by the court represented the struggles of two school districts to cope with segregated housing patterns—a legacy of America’s tortured racial history. Like the rest of the South, Louisville and its suburbs, which together make up Jefferson County, once mandated official school segregation. After the court had unanimously declared such segregation unconstitutional, the Jefferson County schools were eventually put under a judicial decree mandating countywide busing and desegregation measures. In 2000, a judge declared that this had been achieved and ended the desegregation decree.

But a return to neighborhood schools would have looked a lot like resegregation. So the county school board voted in 2001 to consider race in student assignments. The complex rules sought to keep the proportion of black students—34 percent countywide—at no less than 15 percent and no more than 50 percent in each school, from kindergarten through 12th grade. This involved denying to some blacks and whites, on account of race, their first-choice schools.

Seattle does not have the same history of official segregation. But it adopted a voluntary plan to integrate the white 40 percent of its high-school students with the nonwhite 60 percent. Students could choose among the city’s 10 high schools. But the most popular schools gave preference to nonwhite applicants if they were as much as 55 percent white, and to whites if they were as much as 75 percent nonwhite.

Students who were denied their schools of choice sued—and have now won. The decision may force these and other school districts to think more creatively about how to promote racial integration. One promising strategy, promoted by Richard Kahlenberg of the Century Foundation, might be to promote racial and economic integration not by considering race directly, but by seeking to assign people of diverse economic classes to each school. Disadvantaged students, who are disproportionately racial minorities, could be identified by such measures as eligibility for subsidized school lunch programs. Such a class-based program could further racial diversity indirectly. And no justice has ever suggested that class-based preferences violate the Constitution.