The U.S. Supreme Court's 5-4 ruling against voluntary public school desegregation plans is an unfortunate setback for efforts to promote diversity in education. But it's not a total defeat.
Amid some testy rhetoric on both sides, Justice Anthony M. Kennedy, who voted with the majority, offered some hope that the court might still be capable of greater sensitivity - and sensibility - in dealing with vestiges of the nation's shameful legacy of racial discrimination.
At issue were plans in Seattle and Louisville, Ky., that used race as a principal factor in assigning students to public schools. Seattle, with no history of school segregation, tried to achieve in each of 10 public high schools racial balance that approximated the overall population balance in the district. A court-ordered desegregation plan imposed on Jefferson County, Ky., which includes Louisville, had been lifted in 2000. But in an effort to prevent resegregation, the district had imposed a minimum 15 percent and maximum 50 percent minority enrollment in elementary, middle and high schools.
In both districts, some white students were initially denied their first choice of schools. And now the plans, which resemble many others across the country, have been declared constitutionally unacceptable.
Writing for the court, Chief Justice John G. Roberts Jr. offered a rather cramped view of equal protection, insisting that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race." Joined by Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, the chief justice concluded that using race in school assignments could be done only under extremely narrow circumstances.
In a passionate and persuasive dissent, Justice Stephen G. Breyer accused the chief justice and others of distorting precedent and obstructing efforts by state and local governments to deal with the resegregation of public schools. He and the dissenters found a compelling interest in promoting diversity that justified the school assignment plans.
Justice Kennedy, at least, offered some middle ground. Although he agreed that the Seattle and Louisville plans were not sufficiently fine-tuned, he wisely refused to endorse Chief Justice Roberts' limited view of when race-based assignments might be allowed. His suggestion that certain "race-conscious methods" - such as strategic site selection of new schools, allocation of resources for special programs or targeted recruiting of students - could be permissible offers hope that different plans would pass muster in the future.
But anyone who thinks that presidential elections only count for four years or that Supreme Court appointments don't matter much should pay closer attention as the Roberts' court, with its tendency to cut back on established minority rights, comes into its own.