By Robert Barnes
Washington Post Staff Writer
Tuesday, December 5, 2006
Supreme Court deliberations are private, but yesterday's oral arguments on whether it is constitutional to allow school systems to use race in making school assignments became as much a public debate between the divided justices as a questioning of lawyers.
And after two hours, it seemed to reflect a court majority highly skeptical of the proposition that the benefits of racially diverse public schools can justify any restriction on an individual's constitutional right to equal protection.
"You're characterizing each student by reason of the color of his or her skin," Justice Anthony Kennedy told a lawyer representing the Seattle school board. "And it seems to me that that should only be, if ever allowed, allowed as a last resort."
The ultimate decision is likely to be one of the most defining of the court headed by the new chief justice, John G. Roberts Jr., and a powerful statement about where the nation stands more than 50 years after Brown v. Board of Education demanded an end to segregated schools.
The court, encouraged by the Bush administration, has grown increasingly distrustful of racial classifications, and it reached out to take up the cases challenging schools in Seattle and Louisville even though appeals courts had upheld them as constitutional.
Because of the stakes, the day at the court took on a feeling of great import -- there were demonstrations on the plaza out front, some people camped overnight in freezing temperatures to secure a spot in the courtroom, and the lines for members of the bar began forming before dawn. More than 50 organizations weighed in with supporting briefs, mostly on the side of the school boards.
With the departure of Sandra Day O'Connor, Kennedy is seen as the justice mostly likely to depart from his normally conservative outlook. His active questioning of lawyers representing the school boards, who have been sued by white parents whose children were denied their first choice of schools, was the most closely watched.
He noted that even the Bush administration, which intervened on behalf of the white parents, said in its brief that "school districts have an unquestioned interest in reducing minority isolation," but it added that only if it were achieved by "race-neutral means."
"Isn't it odd jurisprudence where we have an objective that we state in one set of terms but a means for achieving it in another set of terms?" he asked Solicitor General Paul D. Clement.
But he also repeatedly questioned the constitutionality of allowing a school system, especially one that has remedied past discrimination, to make school assignment decisions based "solely on skin color." Kennedy seemed to disapprove of the school boards' argument that students weren't being harmed because they still were getting school placements.
"You know, it's like saying everybody can have a meal but only people with separate skin can get the dessert," he said.
In the cases at issue -- Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education-- both systems offer parents and students a choice of schools, partly to achieve a level of integration that wouldn't otherwise be possible because of racially segregated housing patterns.
Both set goals for white and minority representation at schools and, along with other factors, made decisions about school assignments based on a student's race. The previous time Seattle used the system -- it has stopped because of the litigation -- about 100 minority students and 200 white students didn't get their first choice.
The Louisville-Jefferson County plan was implemented after the school system emerged from a 25-year desegregation plan overseen by the federal courts. The goal was to maintain the racial integration it had achieved.
Justice Ruth Bader Ginsburg noted that the federal government was now challenging a system it had once championed.
"What's constitutionally required one day gets constitutionally prohibited the next day," she mused. "That's very odd."
Along with the other liberal justices -- John Paul Stevens, David H. Souter and Stephen G. Breyer -- she seemed to agree that a limited use of race to maintain a more integrated system should be sanctioned.
It set up an interesting debate among the justices in which the liberals argued for a deference to local officials who have found a system that for the most part their constituents like, and conservatives arguing for the strict color-blind protections of the 14th Amendment.
Roberts noted that in segregated school systems, students were also guaranteed a spot, but "because they were assigned to those seats on the basis of race, it violated equal protection."
Ginsburg responded that questioning whether using racial criterion to achieve integration "is the same as segregation, it seems to me is pretty far from the kind of headlines that attended the Brown decision."