Bench Memos

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Segregation vs. Racial Imbalance


From the New York Times’s reckless editorial today (ridiculously titled “Resegregation Now”) on yesterday’s Supreme Court ruling on public schools’ racial-balancing plans:

 “The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate….  [N]ow [the Court] is moving in reverse, broadly ordering the public schools to become more segregated.”  (Emphasis added.) 

In fact, Brown ordered the nation’s schools to desegregate, and, as the conclusion of Chief Justice Roberts’s opinion (citations omitted) explains, other than as a remedy for past discrimination, Brown prohibited rather than mandated assigning children to public schools on the basis of race: 

[T]he position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that 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.” There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.”


Justice Thomas’s concurring opinion (citations and footnotes omitted) explains the relevant terms clearly:


Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.…  In the context of public schooling, segregation is the deliberate operation of a school system to “carry out a governmental policy to separate pupils in schools solely on the basis of race.”  …  Racial imbalance is the failure of a school district’s individual schools to match or approximate the demographic makeup of the student population at large. Racial imbalance is not segregation. Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself.…  [R]acial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.

Tags: Whelan


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