The recent, well-publicized U.S. Supreme Court desegregation cases make it much tougher for school districts to achieve racial diversity and eliminate racially isolated public school systems. In addressing the use of race by Seattle and Louisville school districts in student assignments, Chief Justice John Roberts declared, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
In the ultimate incongruity, Roberts equated these school assignment cases designed to achieve racial diversity to the separate-but-unequal doctrine that existed prior to the Brown v. Board of Education decision. In the Court’s official opinion, Roberts said that:
“Before Brown, school children were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.”
In a concurring opinion, Justice Clarence Thomas proclaimed his belief in a color-blind constitution and outrageously equated Justice Stephen Breyer’s dissenting opinion to the arguments of segregationists in the pre-Brown era.
In these two cases, each school district used race in a limited way to assign students to oversubscribed schools. Despite acknowledging that fewer than 52 students were adversely affected by Seattle’s race-conscious policy and that 95 percent of Louisville’s students attend the school of their choice, Roberts wrote that these programs were invalid for two reasons.
First, Roberts held that no remedial justification existed for either of the school plans because, in his view, neither school district currently discriminated against children of color. According to Roberts, the Seattle public schools were never subject to a court-ordered desegregation decree. Moreover, Roberts noted that in 2000 the Louisville system was found to have “eliminated the vestiges associated with the former policy of segregation …”
Second, Roberts found that race could only be used as one of several diversity factors. The Louisville and Seattle disticts used race as the sole deciding factor. Moreover, without explanation, Roberts declared that these school assignment cases were not governed by Grutter, the 2003 case that upheld Michigan Law School’s affirmative action plans. Presumably, Roberts would limit Grutter’s application to the realm of higher education. He went on to find that the programs were not narrowly tailored because the plans were directed at illegitimate racial balancing, not pedagogic concerns.
