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.
In the aftermath of the decision, there were defenders of integration who tried to salvage something from the wreckage. While I wish those stalwarts were right, they’re whistling in the dark. One argument, proffered by University of Virginia law professor Michael Klarman, is that just as Brown didn’t have much direct impact–substantial desegregation in the Deep South awaited the 1964 Civil Rights Act–these opinions won’t make much of a practical difference either. But in declaring that segregation is immoral and unconstitutional, Brown challenged a way of life in the South and changed the national conversation about race. Anyone who believes that’s unimportant might contemplate a counterhistory in which the Justices upheld “separate but equal.”
UCLA political scientist Gary Orfield, who has been documenting the resegregation of the public schools, searched for solace in Justice Anthony Kennedy’s concurring opinion. A diversity-minded district might pursue the hints Kennedy dropped like bread crumbs and try to achieve racial mixing indirectly by targeting efforts to recruit students and teachers, redrawing attendance zones, building new schools with race in mind, pairing neighborhoods and using family income to assign students.
But Kennedy is no Lewis Powell, whose paean to “diversity” in the 1978 Bakke decision became the backdoor route to affirmative action in higher education. Every nostrum that Kennedy proffered has been tried and failed. Case in point: San Francisco. When the district, nudged by a lawsuit, stopped using race as a factor in student assignment, substituting a “diversity index” that took into account such ostensibly race-related factors as family income and educational background, as well as the racial composition of the neighborhood, one in three San Francisco public schools promptly became resegregated. As the judge in that case noted, “the diversity index…has in fact allowed, if not fostered, resegregation.” The amicus briefs filed in the case make this point, which Kennedy simply chose to ignore.
The well-organized lawyers who brought these cases aren’t going to stop there. “We will want to enforce the decision nationwide,” says Sharon Browne of the conservative Pacific Legal Foundation, ticking off several California districts, including Los Angeles and Berkeley, which she believes are using race in assigning students. Confronted with the very real possibility of seven-figure lawyers’ fees, what school district is going to test the limits of Kennedy’s tolerance for racial specificity?
After these rulings, school integration got more ink than it has in a long time. That long silence reflects the fact that it hasn’t had much of a constituency for years. Still, it’s a stone in the heart that the Gang of Five has forced communities like Seattle and Louisville on the defensive, obliging them to do good, if at all, by stealth. “This is the last generation of Euro-American leadership in the country,” says Orfield, “and we are blowing it. We’re not creating a unified culture. Instead we are polarizing the country. Down the road this will be an extremely puzzling decision–it shows the craziness of whites at the end of their time.”
On the same day the desegregation decision was handed down, the Justices, by the same one-vote majority, overturned a ninety-year-old antitrust precedent that forbade manufacturers from dictating retail prices. That opinion received little attention outside the business pages, but as Justice Breyer, again in dissent, pointed out, “It will likely raise the price of goods at retail.” Guess who loses in that scenario? As the Justices decamp for their three-month vacation, only racists and robber barons have cause to cheer their handiwork.