When Crystal Meredith moved to Louisville, Ky., in August 2002, she attempted to enroll her son in the public kindergarten about a mile from her home. The local school was full. Officials assigned the boy to a school ten miles distant. When Meredith asked whether her son could attend a different elementary school that was also one mile away and had space, she was informed that her son’s assignment to that school would upset the “desegregation compliance” of the school. In other words, he was the wrong color.
Like Louisville, the Seattle, Wash., school board also maintained a “racial balance” policy and assigned students to popular public schools in part based upon skin color. Students received priority in applying to certain popular high schools based upon the presence of a sibling at that school and/or skin color. It was Seattle’s goal to ensure that no oversubscribed public high school had fewer than 31 percent or more than 51 percent white students. Jefferson County, Ky. (Louisville’s district), sought by racial placements to guarantee a black complement in each school of not less than 15 percent and not more than 50 percent.
This sort of social engineering will now end. In a 5-4 decision, the Supreme Court ruled that achieving “diversity” is too weak an argument to justify shuffling kids around on the basis of skin color. Though Chief Justice John Roberts’s opinion is couched in language of precedent and respect for existing law, this case is a clean win for individualists — i.e., for those who oppose racial preferences or racial handicaps. Things might have gone very differently if Justice Sandra Day (prepare for 25 more years of affirmative action) O’Connor were still on the court.
Justice Breyer wrote the dissent and was joined by Justices Souter, Ginsberg, and Stevens. Roberts answered the dissent in the majority opinion (a rare thing in Supreme Court opinions) and basically demolished Breyer’s arguments. But Justice Thomas’s separate concurrence was a tour de force.
Thomas began by distinguishing between racial imbalance, which is a fact of life based on housing patterns, and segregation, which is a state-imposed racial separation. Seattle had never engaged in de jure segregation and accordingly had nothing to remedy. Louisville had corrected its history of segregation and had been certified by a federal district court as having achieved “unitary” status, that is, no longer laboring under the cloud of past discrimination.
If a state is not acting to remedy past discrimination, Thomas and the majority argued, then the use of race as a criterion must be very narrowly tailored. Sure, Thomas conceded, the states may have had, or thought they had, impeccable motives for counting by race. But, Thomas countered, the effects may not be benign.
. . . Every time the government uses racial criteria to ‘bring the races together’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.
. . . This type of exclusion . . . is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and “provokes resentment among those who believe that they have been wronged by the government’s use of race.”
Part of the dissent’s argument focused on the presumed benefits to students of being educated in racially balanced classrooms. Thomas replied that the social-science data is hardly conclusive. There is actually very little evidence that racial mixing improves test scores. Further, Thomas argued powerfully that racial discrimination of almost any kind violates the 14th Amendment and requires far more than social science surveys to buttress it.
But Thomas also detected and exposed the condescension inherent in that argument. He pointed to predominantly black schools both pre- and post-Brown v. Board of Education in which students have excelled, and noted the evidence that students in historically black colleges may do better than those who attend majority white schools. But here’s the zinger: “The Seattle school board itself must believe that racial mixing is not necessary to black achievement. Seattle operates a K-8 ‘African-American Academy’ which has a ‘non-white’ enrollment of 99 percent.” The school, he noted dryly, was established as part of the school board’s effort to improve African-American test scores (and it seems to be having success).
Clarence Thomas ended by proudly lining up with Justice John Marshall Harlan, who famously dissented from the unjust Plessy v. Ferguson decision, declaring, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan is considered a civil rights hero. And Thomas? His greatness is not recognized by his own generation, but history will appreciate him.
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