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From the New York Times
Justices Limit the Use of Race in School Plans for Integration
June 29, 2007
By LINDA GREENHOUSE
WASHINGTON, June 28 With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared Thursday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a students race.
Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a tiebreaker for admission to particular schools.
Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Chief Justice Roberts said such programs were directed only to racial balance, pure and simple, a goal he said was forbidden by the Constitutions guarantee of equal protection.
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race, he said. His side of the debate, the chief justice said, was more faithful to the heritage of Brown, the landmark 1954 decision that declared school segregation unconstitutional. When it comes to using race to assign children to schools, history will be heard, he said.
The decision came on the final day of the courts 2006-7 term, which showed an energized conservative majority in control across many areas of the courts jurisprudence.
Chief Justice Robertss control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Justice Kennedy agreed that the two programs were unconstitutional. But he was highly critical of what he described as the chief justices all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.
In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, avoiding racial isolation and addressing the problem of de facto resegregation in schooling were compelling interests that a school district could constitutionally pursue as long as it did so through programs that were sufficiently narrowly tailored.
The four justices were too dismissive of the validity of these goals, Justice Kennedy said, adding that it was profoundly mistaken to read the Constitution as requiring that state and local school authorities must accept the status quo of racial isolation in schools.
As a matter of constitutional doctrine and practical impact, Justice Kennedys opinion thus placed a significant limitation on the full reach of the other four justices embrace of a colorblind Constitution under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.
How important a limitation Justice Kennedys opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.
Among the measures that Justice Kennedy said would be acceptable were the drawing of school attendance zones, strategic site selection of new schools, and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Justice Kennedy said, because in avoiding the labeling and sorting of individual children by race they would satisfy the narrow tailoring required to meet the equal protection demands of the 14th Amendment.
Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Justice Kennedys proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.
Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. His most pointed words, in fact, appeared nowhere in his 77-page opinion.
It is not often in the law that so few have so quickly changed so much, Justice Breyer said.
In his written opinion, Justice Breyer said the decision was a radical step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. Predicting that the ruling would substitute for present calm a disruptive round of race-related litigation, he said, This is a decision that the court and the nation will come to regret.
Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed Justice Breyers opinion. Justice Stevens wrote a dissenting opinion of his own, as pointed as it was brief.
He said the chief justices invocation of Brown v. Board of Education was a cruel irony when the opinion in fact rewrites the history of one of this courts most important decisions by ignoring the context in which it was issued and the Supreme Courts subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.
It is my firm conviction that no member of the court that I joined in 1975 would have agreed with todays decision, Justice Stevens said. He did not mention, nor did he need to, that one of the justices then was William H. Rehnquist, later the chief justice, for whom Chief Justice Roberts once worked as a law clerk.
Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.
If our history has taught us anything, Justice Thomas said, it has taught us to beware of elites bearing racial theories. He added in a footnote, Justice Breyers good intentions, which I do not doubt, have the shelf life of Justice Breyers tenure.
The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle programs filed their Supreme Court appeals from the lower court decisions that had upheld the programs.
The Louisville case was Meredith v. Jefferson County Board of Education, No. 05-915, filed by the mother of a student who was denied a transfer to his chosen kindergarten class because the school he wanted to leave needed to keep its white students to stay within the programs racial guidelines.
The Seattle case, Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, was filed by a group of parents who had formed a nonprofit corporation to fight the citys high school assignment plan.
Because a single Supreme Court opinion resolved both cases, the decision carries only the name of the Seattle case, which had the lower docket number.
The appeals provoked a long internal struggle over how the court should respond. Months earlier, when Justice Sandra Day OConnor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.
By the time the court ruled on Thursday, there was little suspense over what the outcome would be. Not only the act of accepting the appeals, but also the tenor of the argument on Dec. 4, gave clear indications that the justices were on course to strike down both plans.
The cases were by far the oldest on the docket by the time they were decided; the other decisions the court announced on Thursday were in cases that were argued in March and April. What consumed the court during the seven months the cases were under consideration, it appears likely, was an effort by each side to edge Justice Kennedy closer to its point of view.
While it is hardly uncommon to find Justice Kennedy in the middle of the court, his position there this time carried a special resonance. He holds the seat once occupied by Justice Lewis F. Powell Jr. who, 29 years ago to the day, announced his separate opinion in the Bakke case. That solitary opinion, rejecting quotas but accepting diversity as a rationale for affirmative action in university admissions, defined the law for the next 25 years, until the decision was refined and to some degree strengthened in the University of Michigan Law School decision.
Justice Kennedy was a dissenter from that 2003 decision. But, surprisingly, he cited it on Thursday, invoking it to rebut the argument that the Constitution must be always be, regardless of context or circumstance, colorblind.
Copyright 2007 The New York Times Company
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The Same Words, but
But lawyers who represented the black schoolchildren
in the Brown case said yesterday that several justices
in the majority had misinterpreted the positions they
had taken in the litigation and had misunderstood the
true meaning of Brown.
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