Some initial observations based on a first reading of the Court’s opinion striking down voluntary school integration programs in Louisville and Seattle:
- Nothing in the text of the Constitution compels these programs to be struck down. Essentially, Roberts’s plurality opinion rests on the assertion that racial classifications intended to perpetuate a caste system should be considered the precise legal equivalent of racial classifications intended to remedy segregation. This is exceptionally unpersuasive, and also makes it almost impossible to actually remedy the ongoing de facto segregation of American school systems, much of which has roots in various forms of state discrimination (not just formal apartheid in the South, but the drawing of arbitrary school district lines to create segregated systems, local ordinances encouraging residential segregation, etc.) As Breyer says, “This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.” To compare what these cities are doing to states that maintained apartheid is historically blinkered and morally untenable.
- Given the modesty of the Seattle program — which used race only as a tiebreaker, making the potential injustices of the classification particularly dubious — it is clear that no affirmative action program is going to survive an encounter with the Roberts Court in its current configuration. This is another area where replacing O’Connor with Alito makes a major difference.
- The opinion was predictably narrowed by Kennedy, who provided the swing vote but (exactly as Dahlia Lithwick predicted) holding out the dim possibility that a future program may theoretically take race into account. This probably won’t be terribly meaningful in practice (particularly since the federal courts are rapidly abandoning the desegregation orders necessary for Kennedy’s distinction to be relevant.)
- I strongly urge you to read Breyer’s dissent, which among many virtues contains a detailed history of segregation in both cities, pointing out that federal court orders were necessary to compel desegregation in both cities and (contrary to the plurality) even Seattle had significant elements of de jure segregation. It also does a good job of pointing out the opinion’s obvious inconsistency with past precedents the Court claims to be applying (I’ll have more on that later.)
- I’ll have an article about this coming out tomorrow, but you will be shocked to hear that Thomas’s concurrence does not contain the long-awaited historical evidence that the Fourteenth Amendment was originally understood as prohibiting even remedial racial classifications. Strange; I’m sure he must have it somewhere and just hasn’t gotten around to it! Obviously, in the wake of Bush v. Gore accusations by conservatives about liberals favoring “judicial activism” or “outcome-oriented” jurisprudence are risibly hypocritical, but here’s another data point.
- I’ll give the last word for to Breyer: “Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.
The plurality is wrong to do so. 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.”