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Justices limit use of race as tool

The Baltimore Sun

WASHINGTON -- With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared yesterday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student's race.

Voting 5-4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a "tiebreaker" for admission to particular schools.

Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Roberts said such programs were "directed only to racial balance, pure and simple," a goal he said was forbidden by the Constitution's guarantee of equal protection.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he said. His side of the debate, the chief justice said, was "more faithful to the heritage of Brown," the landmark 1954 decision that declared school segregation unconstitutional. "When it comes to using race to assign children to schools, history will be heard," he said.

In Maryland, the court's ruling is expected to have little practical impact because none of the state's public school systems uses race to determine where students attend school.

Montgomery County school officials were forced to stop using race as a factor in assigning students after the 4th U.S. Circuit Court of Appeals ruled in 1999 that the practice was unconstitutional.

Woody Grant, chief of the Maryland State Department of Education's equity assurance and compliance branch, said the only uncertainty is whether some charter schools might be affected. "We're still getting a handle on charter schools, and I don't know how charter schools are looking in most of the state," he said.

Charter schools are publicly funded but operate independently under contracts with local school boards or regulating agencies.

The court's decision came on the final day of its term, which showed an energized conservative majority in control across many areas of jurisprudence.

Roberts' control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Kennedy agreed that the two plans were unconstitutional. But he was highly critical of what he described as the chief justice's "all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account."

In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Kennedy said that achieving racial diversity, "avoiding racial isolation" and addressing "the problem of de facto resegregation in schooling" were "compelling interests" that a school district could constitutionally pursue as long as it did so through programs that were "narrowly tailored."

The four justices were "too dismissive" of the validity of these goals, Kennedy said, adding that it was "profoundly mistaken" to read the Constitution as requiring "that state and local school authorities must accept the status quo of racial isolation in schools."

As a matter of constitutional doctrine and practical impact, Kennedy's opinion thus placed a significant limitation on the full reach of the other four justices' embrace of a "colorblind Constitution" under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.

Meredith Curtis, spokeswoman for the ACLU of Maryland, was encouraged that a majority of the court did not wholly reject the importance of racial diversity in public education.

"It is a step backward, but we want to make sure that jurisdictions here in Maryland realize that a majority on the court did recognize there was a compelling interest in racially diverse schools," Curtis said.

"Unfortunately, public schools are more segregated today than they have been in many decades, and we are disturbed that four members of the court led by the new Chief Justice Roberts did not believe that there was a compelling interest in racially diverse public schools. The ACLU believes that that repudiates the fundamentals of Brown v. Board of Education."

How important a limitation Kennedy's opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.

Among the measures that Kennedy said would be acceptable were the drawing of school attendance zones, "strategic site selection of new schools" and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Kennedy said, because in avoiding the labeling and sorting of individual children by race, they would satisfy the "narrow tailoring" required to meet the equal protection demands of the 14th Amendment.

Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Kennedy's proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.

Breyer wrote that the decision was a "radical" step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent re-segregation of their public schools. Predicting that the ruling would "substitute for present calm a disruptive round of race-related litigation," he said, "This is a decision that the court and the nation will come to regret."

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed Breyer's opinion. Stevens wrote a dissenting opinion of his own, as pointed as it was brief.

He said the chief justice's invocation of Brown v. Board of Education was "a cruel irony" when the opinion in fact "rewrites the history of one of this court's most important decisions" by ignoring the context in which it was issued and the Supreme Court's subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.

Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.

"If our history has taught us anything," Thomas said, "it has taught us to beware of elites bearing racial theories." Then he added in a footnote, "Justice Breyer's good intentions, which I do not doubt, have the shelf life of Justice Breyer's tenure."

The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle plans filed their Supreme Court appeals.

Natalie Woodson, education chair for the Maryland chapter of the National Association for the Advancement of Colored People, said members had hoped that the court would allow voluntary plans to desegregate schools.

"It's almost like they are using the reverse discrimination argument," Woodson said.

Sun reporters Gina Davis, Gady A. Epstein and John-John Williams IV contributed to this article.

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