“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
So said Chief Justice John Roberts, speaking for a five-justice majority Thursday as the court ruled that public school administrators can not use race in assigning students to particular schools.
To use race-influenced assignments, Roberts said, violates the Equal Protection Clause of the Fourteenth Amendment.
The irony is that in the Seattle and Jefferson County, Ky., cases that the court decided Thursday, the school administrators were using race as one factor in assigning students to schools — but they were doing so in order to prevent the schools from becoming racially segregated.
Decisive in the outcome was the chief justice’s statement that the schools in these cases “never segregated on the basis of race” (Seattle) or “have removed the vestiges of past segregation," in the case of Jefferson County.
This was "very significant," said Richard Kahlenberg, an expert on school segregation at the Century Foundation. He said if the school districts in question had been under court-ordered desegregation, "they would have been free to continue to use race" in assigning students to schools.
Should court-watchers have been surprised at how Roberts ruled?
Not if they were paying attention two years ago when Roberts testified during his confirmation hearings before the Senate Judiciary Committee.
Two years ago, as he did Thursday, Roberts interpreted the court’s 1954 Brown v. Board of Education desegregation decision to require that students not be separated by race.
For him and his four majority colleagues, Brown v. Board of Education means that race cannot be used to assign students to specific schools.
Roberts telegraphed his views clearly in responding to a question from Sen. Edward Kennedy, D-Mass., on the Brown decision.
Separating students by race
In his testimony on Sept. 13, 2005, the nominee told Kennedy that the court in Brown v. Board of Education had “found that the separate education was inherently unequal.… The genius of the decision was the recognition that the act of separating the students was where the violation was.”
The justices, Roberts told Kennedy then, rejected the idea “that you could have equal facilities and equal treatment.” In Roberts’ analysis, “the act of separation is what constituted the discrimination.”
Asked to comment on Thursday’s decision, Sen. Kennedy said, “This continues to demonstrate the inadequacy of the confirmation process where we had, in the case of Roberts, a confirmation conversion on the issues of civil rights.”
Kennedy recalled that as a lawyer in the Reagan administration, Roberts had criticized the 1982 revision of the Voting Rights Act and had argued against using racial preferences in allocation of broadcast licenses.
“He had a conversion (during his confirmation hearings),” Kennedy said, adding of Thursday’s decision, “It just shows that we need to undo it.”
Despite Kennedy's opposition two years ago, Roberts did win confirmation (with 78 senators supporting him).
Once he was on the bench, he made it clear how he’d apply the Brown desegregation ruling to the Seattle and Kentucky cases that the court decided Thursday.
In December, when the cases were argued before the high court, Roberts had made plain his view that the precedent of the Brown decision mandated that race not be used as a factor in placing students in particular schools.
When Roberts contended that students were “being denied admission on the basis of their race,” Seattle School District lawyer Michael Madden countered with the argument that “They're not being denied admission.... Seats are being distributed to them.”
But Roberts didn’t accept this, telling Madden, “The reason that our prior tests have focused on individual determination is that the purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than based on the color of their skin…. The decision to distribute, as you put it, was based on skin color and not any other factor.”
In using the Brown decision as his precedent Thursday, the chief justice even went so far as to quote one of the lawyers who argued the Brown case before the high court in 1952.
“No State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens,” lawyer Robert Carter told the high court in 1952 as he argued the cause of the black children who had been sent to a segregated school.
“There is no ambiguity in that statement,” Roberts commented Thursday. “And it was that position that prevailed in this Court” back in 1954.
Tempering the chief justice's opinion was the concurring opinion filed by Justice Anthony Kennedy who voiced his view that school administrators can sometimes use race-conscious measures, such as "strategic site selection of new schools" to achieve racially mixed student bodies.
He said some observers might misinterpret Thursday's ruling to conclude that "the Constitution requires school districts to ignore the problem of de facto resegregation in schooling."
But, he said, "I cannot endorse that conclusion."
Kennedy said the problem was the "crude" way in which the school districts went about using race in placing students.
Kahlenberg predicted that in the aftermath of Thursday's ruling, school districts would start using "socioeconomic status rather than race" in assigning students to schools. "Using socioeconomic status as a factor in student assignment is perfectly legal, and yet it will indirectly produce much greater racial diversity than a system of neighborhood schools."
In his dissenting opinion, Justice Stephen Breyer, who once served as a staff attorney for Sen. Kennedy, said Roberts had his reading of history all wrong.
“It is a cruel distortion of history to compare Topeka, Kansas, in the 1950s to Louisville and Seattle in the modern day — to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined).”
Breyer admitted that “that there is a cost in applying ‘a state-mandated racial label.’”
But he said “that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation.”
In contrast to Kennedy's chagrined reaction, another Democratic senator, Jim Webb of Virginia, had a more equivocal immediate response to the ruling, “I would be hesitant to venture an opinion about a decision I haven’t read, but it seems to me that that was sort of decided back in Brown v. Board of Education when they eliminated race as an issue,” Webb said.
A Republican member of the Senate Judiciary Committee, Sen. John Cornyn of Texas, who voted for Roberts, said of Thursday’s ruling, “I’ve always been under the impression that we were striving for a color-blind society, so I would think that this is a correct ruling. It is a two-edged sword. Once you begin to take race into account, then government becomes a determiner of what’s enough and what’s not enough. Once you head down that road, you’re on thin ice.”