In June 2007, Chief Justice John Roberts mustered five votes to stymie public-school integration in the consolidated cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education. Supported by his colleagues on the right—Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito—Roberts declared that the voluntary efforts of Seattle and Louisville to desegregate their public schools violated the equal-protection clause of the 14th Amendment. By doing so, Roberts converted the promise of the equal-protection clause—adopted to safeguard the rights of newly freed slaves—into a shield to protect white plaintiffs from the threat of attending racially inclusive schools. In the process, he rewrote decades of equal-protection law and announced a misguided denial of the nation’s history in the name of a fictional color-blind Constitution.
The cases from Louisville and Seattle were litigated separately in the lower courts and consolidated for consideration in the Supreme Court. A federal court found in the 1970s that Louisville operated an unconstitutionally segregated school system and placed it under federal court supervision. Louisville submitted to a series of court-ordered desegregation plans, eventually convincing the lower court that local control should be restored. Because the city commendably wanted to maintain its progress, it kept the use of race as one factor in determining where children could attend school. The Supreme Court held that the city’s warrant to take race into account in assigning pupils had expired when the lower court lifted its injunction. The race-conscious assignment plan was required by the Constitution one day but prohibited the next.
Seattle repeatedly adopted desegregation measures to avoid litigation that would have resulted in a finding that it operated an unconstitutional school system. The city implemented a race-conscious school busing program that Washington voters overrode by referendum, but that the Supreme Court implicitly embraced by invalidating the referendum in 1982. In Parents Involved, however, the Roberts majority reversed course, stating that the city could not voluntarily consider race as a tool to integrate its schools in the absence of a finding of discrimination by a federal court. In other words, if Seattle had resisted desegregation, a court could have ordered it to consider race, but it could not voluntarily remedy segregation on its own.
Roberts’s plurality opinion ripped the desegregation plans from their context, proclaiming that any consideration of race, no matter how benign or inclusive, was presumptively unconstitutional. He suggested that a desire to create inclusive schools—which he disparaged as “racial balancing”—was not a sufficiently compelling goal to justify consideration of race. He rejected arguments that diverse schools produce better educational outcomes and teach children the skills and attitudes that will help them live in a diverse society.
Most disturbingly, Roberts distorted the history of Brown v. Board of Education to support his opinion. Brown, decided in 1954, recognized that separate schools based on race were inherently unequal because they told African-American children they were inferior. Roberts disingenuously argued that the Brown plaintiffs had asked only to end the classification of children based on race. He found the inclusive Seattle and Louisville plans indistinguishable from the period before Brown, “when schoolchildren were told where they could and could not go to school based on the color of their skin.” The Brown plaintiffs, however, argued for an end to racial classifications because they believed African-American children would then be integrated into schools with white students. The elimination of racial classifications was a means of achieving inclusion in integrated schools—the very result that the Seattle and Louisville plans sought.