Where Is the Roberts Court on Race?

The Roberts Court Tackles Race

Crystal Meredith had a simple wish: she wanted her son, Joshua, to attend an elementary school near their home in Louisville, Ky. But when Meredith went to enroll him in kindergarten in 2002, she bumped up against the schools' voluntary integration policy. Designed to maintain racial balance in the once-segregated Louisville schools, the plan lets parents choose among schools in various clusters across the city. But the institutions all strive to keep the number of African-American students somewhere between 15 and 50 percent of the school population. If the number drops too low or grows too high, students of any race can be shunted to other schools.

When Meredith, who is white, tried to sign up Josh, he was assigned to an elementary school that required a long bus ride across town. "The bus didn't come anywhere near our house, so I had to drive him," Meredith tells NEWSWEEK. A single mom, she had to cut back her hours at work so she could serve as chauffeur. Meredith soon applied for a school transfer so that Josh could move to a closer school. But the request was denied: it would have thrown off the racial balance at the school across town. Meredith soon filed suit, losing twice in federal court. On Monday, she's taking her case as far as it can go—to the U.S. Supreme Court. "I see this as a parent wanting what's best for their child," says Meredith, who insists her case is not about race or affirmative action. "That's really all I see."

But it's not all that others see in the case, which will be heard along with a similar one from Seattle. Depending on how the high court rules, hundreds of school districts around the country may have to abandon—or at least adjust—student assignment policies that use race as a factor. "But the stakes are much higher than that," says Duke University law professor Neil Siegel. "It really could be the final legacy of Brown," he says, referring to the landmark 1954 Supreme Court ruling that said "separate but equal" facilities were not good enough. The court later embraced affirmative action in the 1978 Bakke decision; in a 1991 case from Oklahoma City, the court made it easier for school districts to abandon forced busing efforts once they'd desegregated. The last time the court addressed the issue—in two University of Michigan cases in 2003—it ruled against strict formulas that award admissions points based on race, but permitted a "holistic review" that considers race.

Just as last week's arguments on global warming mark the first time the Roberts Court has delved into environmental issues, Monday's cases are the first time his court will wade into the national debate on race. "This could be a strong signal for where the Roberts Court is headed," Siegel says, since the justices will be deciding whether government should get out of the business of making decisions with color in mind.

Even deciding to tackle the cases, Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, wasn't easy. Court watchers were surprised the Supremes decided to weigh in at all. There were no conflicts among the lower courts, and the high court had addressed the general issue in the Michigan cases just a few years ago. In fact, the justices discussed taking the Kentucky case at seven separate meetings before agreeing to hear it. (They discussed the Seattle case six times.) Months earlier, they had declined to hear a similar case from Massachusetts.

What changed? For one, Justice Sandra Day O'Connor left the bench. She had penned the majority opinion in the Michigan law school case, suggesting that affirmative action shouldn't continue forever, but might be needed for another 25 years. Justices Antonin Scalia, Clarence Thomas, William Rehnquist and Anthony Kennedy dissented. But now O'Connor and Rehnquist have been replaced by Chief Justice John Roberts and Associate Justice Samuel Alito. "The composition of the court has changed and that's what makes it interesting," says Carl Tobias, law professor at the University of Richmond. Though no one knows for certain how Roberts or Alito will vote, both are assumed to oppose affirmative-action plans. One hint: "It's a sordid business, this divvying us up by race," Roberts commented last June when the court ruled on a Texas voting-rights dispute.

But there are a few more variables in play. For one, the Kentucky and Seattle cases aren't strictly affirmative-action cases. No one is being denied a slot at a top law school—all the students get an education. The question is how far school districts can go in using race to decide exactly how and where that happens. In the Seattle case, Ninth Circuit Court of Appeals Judge Alex Kozinski, a conservative Reagan appointee, wrote a striking opinion upholding the plan: "No race is turned away from government service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability."

Some court watchers think Kozinski's words were carefully crafted with a particular audience in mind: his old mentor Justice Anthony Kennedy, the most likely swing vote in these cases. Kozinski once clerked for Kennedy and now often sends him law clerks. The Kozinski opinion, says Washington lawyer Thomas Goldstein, is a "love letter" to Kennedy, an attempt to persuade him to uphold the school plans. "It's impossible to know if he will go for that," says Goldstein, who filed an amicus brief in the case on behalf of the National School Boards Association.

Will the court find some way to sidestep the major questions raised by these cases? Siegel says the court could rule narrowly, acknowledging important values on both sides of the debate. And the justices might find some way to allow schools to use race without it dominating the student-assignment process. But "there's no ducking this question," says Goldstein. "It's unavoidably going to result in a very significant decision." The justices are aware of the heightened public interest: they're releasing same-day audio of the oral arguments Monday.

Where Is the Roberts Court on Race? | News