Important Point Missed by Critics
Hillary Clinton and other's in the Democratic race for the White House were the loudest with that criticism, but it misses a point, completely, about the decision, and the 'resegregation' of the schools.
When Brown v. Board of Education was decided schools were segregated by law, students were told you cannot attend School X due to the fact that you are black.
Today we do have resegregation happening in schools, but nearly all due to choice, people moving where they'd like, not where they are told. The problem with both the Louisville and Seattle plans that were the subject of the litigation was that they both said "You can't go to School X because of your race".
Whether some folks like the idea or not, Roberts was correct in writing for the majority:
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
That was the exact problem with both the Seattle and Louisville plans. Some folks seem uncomfortable with the idea of White as a race in these decisions, but the fact is, white is a race. When you tell a white person you can't go somewhere because you are, it's no less discriminatory than telling a black person they have to ride at the back of the bus.
The other point missed was that the schools weren't told race can never be used as a factor, but that their has to be a compelling reason to use it as a factor. In Seattle's case the compelling factor in denying a white child entry into a neighborhood school was that the school had to meet it's racial quote to have a balance of races like the city. That alone wasn't reason enough to the five justices, nor should it have been.
Justice Thomas probably hit it on the head in regards to Seattle's program, when he said of the dissenters in the case:
[they would]"constitutionalize today's faddish social theories . . . if our history has taught us anything, it has taught us to beware of elites bearing racial theories."
Louisville's case had to be a little tougher for all the Justices, and may be why Kennedy's joining opinion left the door open for use of race, in a more limited manner.
That city had been under federal orders to desegregate based on past injustices. Unfortunately, the voluntary plan they came up with locked the door to a local school if it exceeded it's goal of your particular race, and forced you into another school that hadn't. While it was a white family that brought that case, many blacks in Louisville were forced into out of area schools because the local one had "too many of those people" in it.
Kennedy, in joining, gave districts a number of options for ways to achieve diversity in schools that would meet a constitution test. The question now is how many will throw their hands in the air and give up, and how many will become creative, instead of discriminatory.
Technorati Tags: Racism, Schools, Segregation, Supreme Court, Seattle, Louisville