Divided Court Limits Use of Race by School Districts

By Robert Barnes
Washington Post Staff Writer
Friday, June 29, 2007

A divided Supreme Court yesterday restricted the ability of public school districts to use race to determine which schools students can attend, a decision that could sharply limit integration programs across the nation.

The nine justices split decisively along ideological grounds, with a five-justice majority ruling that school admission programs in Seattle and Louisville violated the Constitution's guarantee of equal protection to individuals. Educators said the decision may lead many districts to drop efforts at racially balancing schools.

In a dramatic 45 minutes on the final day of the court's term, three justices took turns reading sometimes-biting opinions that portrayed the ruling as either the natural affirmation or a bitter betrayal of the landmark Brown v. Board of Education desegregation decision of 1954.

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin," Chief Justice John G. Roberts Jr. wrote for a plurality that included Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. "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."

He added: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The court's four liberals delivered a scathing dissent that was twice as long as Roberts's opinion. Justice Stephen G. Breyer said the decision is one "the court and the nation will come to regret."

"The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration," Breyer wrote. "Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950s to Louisville and Seattle in the modern day."

But Roberts, writing the most important opinion of his two years presiding over the court, said that even the good intentions of districts trying to maintain integrated schools were not enough to overcome constitutional protections of individual rights.

Justice Anthony M. Kennedy cast the deciding vote in agreeing with the court's conservatives to strike down the school plans, but he pointedly declined to sign on to about half of Roberts's 41-page opinion.

His position -- somewhere between the conservatives' view that race may not be used to classify students and the liberals' position that it is necessary to achieve integrated schools -- made the impact of the ruling a bit more ambiguous, and again raised his importance as the court goes forward.

"Parts of the opinion by the Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account," Kennedy wrote. "The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race."

Kennedy said that race could perhaps be considered in the tools that school districts use to bring "together students of diverse backgrounds and races." He mentioned magnet schools, "strategic site selection" of new schools, redrawing attendance zones and other measures.

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