Justice Stephen Breyer is the very model of a decorous Supreme Court Justice. That’s why his impassioned soliloquy condemning the majority’s decision in the school desegregation cases, delivered on the last day of the Court’s term, drew so much attention. Those opinions “threaten the promise” of Brown v. Board of Education, he said. “This is a decision that the Court and the nation will come to regret.”
These cases represent the last chapter in the half-century effort to end racial isolation in the public schools. The Seattle and Louisville integration plans that the five-member majority struck down are remarkable in their modesty. These communities weren’t sending kids across town on long bus rides in the name of racial balance, and neither of them was using a strict racial quota to assign students. “I am not aware of any district that is actively seeing the broad-based use of a race-based mechanism to dictate large portions of the districts’ student assignments,” says Joseph Olchefske, former superintendent of schools in Seattle. In both cities, race was simply a tiebreaker in determining which students could attend a popular school. There has to be some rule for making decisions in these cases–race was selected, says Olchefske, because it’s “a way of promoting a better environment for learning.” What’s wrong with that?
These two cities came to adopt race-sensitive choice plans in ways that reflect their local political values. In the 1970s, confronted by threats of a desegregation lawsuit, Seattle began to bus students; when that arrangement generated widespread hostility, the district settled for a more modest, and more educationally defensible, process that allowed more than 90 percent of the students to attend their first- or second-choice school.
In the same era, court-ordered desegregation roiled the city of Louisville. A reporter at the Louisville Courier-Journal described “angry mobs silhouetted by fires in the streets. The pungent odor of tear gas.” But over the years the citizens concluded that integration was an important objective. When the district emerged from a quarter-century of judicial monitoring in 2000, the school board voted to keep intact much of the court-ordered plan, which countenanced race-conscious assignments to maintain diversity. It was a popular decision–two-thirds of parents agreed that a school’s enrollment should reflect the district’s racial mix, according to a 2000 survey, and a survey done the following year found that 85 percent of Louisville high school seniors reported that because they’d attended integrated schools, they were better equipped to live in a diverse society.
In the desegregation cases, as in many of the 5-to-4 rulings, ideology trumped principle. For years conservatives had argued against judicial meddling in local politics, but in Seattle and Louisville the activist conservatives were quite happy to meddle. And while the right has regularly intoned that the Court isn’t a super school board, the five-member majority unhesitatingly substituted its views about good education for those of school officials. Chief Justice John Roberts wrapped himself in the mantle of Brown. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. When it comes to using race to assign children to schools, history will be heard.” But Roberts must have flunked American history, since to pretend that there is no difference between Little Rock circa 1957 and Louisville circa 2007 upends history.