A Blow to Brown

Friday, June 29, 2007

HALF A CENTURY ago, in Brown v. Board of Education, a unanimous Supreme Court ruled that the Constitution forbids school systems from maintaining racially segregated schools. Yesterday, a splintered Supreme Court, invoking the language of Brown but ignoring its context and undermining its intent, ruled that the Constitution forbids school systems from taking certain steps to maintain integrated schools. The impact of the decision may be softened by Justice Anthony M. Kennedy's refusal to go along with what he called "an all-too-unyielding insistence that race cannot be a factor" and by his willingness to let schools use "race-conscious measures," including drawing school attendance zones, selecting building sites, and recruiting students and faculty. But the court's action, at a time when the nation's schools are increasingly resegregating, threatens voluntary efforts to achieve the integrated public schools that were the promise of Brown. As Justice Stephen G. Breyer wrote for the four dissenters, "This cannot be justified in the name of the Equal Protection Clause."

The ruling involved school assignment plans in Seattle and Louisville. Seattle for the most part let students attend their high school of choice but took race into account when a school's racial mix was out of balance with the school population as a whole. Louisville's K-12 plan, which emphasized neighborhood schools and student choice but similarly took race into account in certain circumstances, was adopted when the system was under a federal court's desegregation order. It's a strange view of the Constitution that requires a desegregation plan one day and prohibits it the next.

Four members of the court seem to disagree, but we believe school systems have a compelling interest in operating schools that are as diverse as possible and in taking reasonable steps to overcome patterns of residential segregation that would otherwise frustrate that goal. The court has recognized diversity as a compelling interest in the context of higher education, as recently as in its 2003 ruling upholding an affirmative action program at the University of Michigan Law School. If anything, the argument for diversity is even more compelling for younger children, whose attitudes about race are being formed and future educational opportunities determined. Moreover, the potential harm to students in this situation is less than in higher education, when admission to an elite institution may be at stake. The plans at issue in these cases did not involve admission to merit-based or select programs such as magnet schools.

Assigning pupils to schools even in part on the basis of race is not a pleasant or desirable approach; it certainly shouldn't be the tactic of first resort. But the harm to white students here cannot legitimately be compared to the harm to black schoolchildren that animated the court in Brown. Justice Kennedy's concurring opinion correctly took the four-justice plurality to task for its glib assertion, in the opinion written by Chief Justice John G. Roberts Jr., that the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." As Justice Kennedy noted, "Fifty years of experience since Brown. . . should teach us that the problem before us defies so easy a solution." There is reason to doubt whether the leeway that Justice Kennedy would give school systems would be adequate for the task, and, even if it were, to worry how long that uneasy equipoise would hold on a court tilting as far to the right as this one is.

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