Every Supreme Court decision seems to get worse and worse:
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 student’s 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.
In other words, the court has just taken a major step toward resegregation in schools. The Times has a good editorial on it:
Chief Justice Roberts, who assured the Senate at his confirmation hearings that he respected precedent, and Brown in particular, eagerly set these precedents aside. The right wing of the court also tossed aside two other principles they claim to hold dear. Their campaign for “federalism,” or scaling back federal power so states and localities have more authority, argued for upholding the Seattle and Louisville, Ky., programs. So did their supposed opposition to “judicial activism.” This decision is the height of activism: federal judges relying on the Constitution to tell elected local officials what to do.
The nation is getting more diverse, but by many measures public schools are becoming more segregated. More than one in six black children now attend schools that are 99 to 100 percent minority. This resegregation is likely to get appreciably worse as a result of the court’s ruling.
There should be no mistaking just how radical this decision is. In dissent, Justice John Paul Stevens said it was his “firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” He also noted the “cruel irony” of the court relying on Brown v. Board of Education while robbing that landmark ruling of much of its force and spirit. The citizens of Louisville and Seattle, and the rest of the nation, can ponder the majority’s kind words about Brown as they get to work today making their schools, and their cities, more segregated.
As Geoffrey Stone points out, both Alito and Roberts are guided more by ideology than rule of law, despite their confirmation hearing claims that they would stick to the principle of stare decisis. You should also read Scott’s thoughts on the case.
Justice Breyer’s dissent is also worth a read (thanks to Scott for providing the link). He offers crucial information on just how segregated our schools already are:
Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99-100% minority. See Appendix A, infra. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts.
The Seattle plan, which was modest and limited, sought to make a tiny dent in this segregation. Now, we can expect things to go from bad to worse. More Breyer, because his dissent is so powerful:
Indeed, the consequences of the approach the Court takes today are serious. Yesterday, the plans under review were lawful. Today, they are not. Yesterday, the citizens of this Nation could look for guidance to this Court’s unanimous pronouncements concerning desegregation. Today, they cannot. Yesterday, school boards had available to them a full range of means to combat segregated schools. Today, they do not.
The Court’s decision undermines other basic institutional principles as well. What has happened to stare decisis? The history of the plans before us, their educational importance, their highly limited use of race–all these and more–make clear that the compelling interest here is stronger than in Grutter. The plans here are more narrowly tailored than the law school admissions program there at issue. Hence, applying Grutter’s strict test, their lawfulness follows a fortiori. To hold to the contrary is to transform that test from “strict” to “fatal in fact”–the very opposite of what Grutter said. And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality’s logic, be written out of the law.
And what of respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.
And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.
And what of the long history and moral vision that the Fourteenth Amendment itself embodies? The plurality cites in support those who argued in Brown against segregation, and Justice Thomas likens the approach that I have taken to that of segregation’s defenders. See ante, at 39-41 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville’s integration polices); ante, at 28-32 (Thomas, J., concurring). But segregation policies did not simply tell schoolchildren “where they could and could not go to school based on the color of their skin,” ante, at 40 (plurality opinion); they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history, see ante, at 39 (plurality opinion), is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950’s to Louisville and Seattle in the modern day–to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). This is not to deny that there is a cost in applying “a state-mandated racial label.” Ante, at 17 (Kennedy, J., concurring in part and concurring in judgment). But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation.
…
The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.
Absolutely.
The majority opinion atrocious and a major step backwards. But I also have big problems with how the more progressive side of the court has handled integration issues. In affirmative action (“AA” from here on out) cases particularly, the more liberal justices have often based their support of AA on the idea that it contributes to “diversity,” and diversity is important.
That’s true. But who is benefitting from that diversity and who are the bodies that make a place “diverse”?
The underlying rationale in the diversity argument is that AA (and desegregation policies) are important because they make things more interesting for white people. Just look at how diversity is framed: It allows the majority population to come into contact with people of different races, cultures and backgrounds; it widens our horizens; it prepares us for a life of interaction with people unlike ourselves. In other words, diversity is good because the presence of minorities help the majority. It’s kind of like the argument that racism is bad because it hurts all of us — which isn’t exactly true. Racism hurts particular classes of people far worse than others, and it maintains a system wherein a certain class is in power. I don’t like racism and I would like to see racism obliterated, but as a white person racism most certainly does benefit me.
The fact that the diversity argument is the one that still (kind of) flies with the Court is pretty indicative of just how far we haven’t come — arguments for desegregation policies still must be premised on the grounds that they’re good for white people. That in itself should indicate that we aren’t living in a colorblind society, and shouldn’t pretend that we are. Unfortunately, as BfP points out, conservatives have taken to perverting anti-racist concepts of equality in an effort to re-segregate schools and society in general. If I have to hear “Affirmative action is all about judging people by the color of their skin, and not by the content of their character” one more time, I might hit something. Because, newsflash: People are already judged by the color of their skin and not the content of their character. Beyond that, there is a thriving racial caste system in this country. Ignoring it and braying on about “equality” when nothing resembling actual equality has been reached doesn’t do a damn thing except to maintain the status quo.
These cases should be about realizing equality, and they should be about the people who are treated unequally. Instead, they’re about a powerful majority crying persecution, and liberals promoting progressive policies only when they can argue that the policies benefit white people.
I don’t think that’s the dream Dr. King was talking about.