Supreme Court Strikes at Affirmative Action

June 28, 2007 — -- In a landmark decision that will affect school districts across the country, a deeply divided Supreme Court Thursday struck down plans in Louisville, Ky., and Seattle, Wash., that assigned students to schools based partly on the color of their skin.

The cases sharply split the Court and produced five separate opinions. Chief Justice John Roberts wrote the majority decision, which said the school districts failed to justify "the extreme means they have chosen -- discriminating among individual students based on race by relying upon racial classifications in making school assignments."

But the Court fell short of a sweeping decision saying that race can never be taken into consideration. Justice Anthony Kennedy refused to sign onto parts of Roberts' decision that the Constitution is color blind and demands that all people be treated equally, without any regard to their race.

Roberts tried to draw a clear line. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he wrote. But only three other justices — Antonin Scalia, Clarence Thomas and Sam Alito — agreed with that.

Kennedy took the uncommon step of reading parts of his concurring opinion aloud from the bench -- a practice typically done only by the justice who writes the majority and dissent. Court observers could not recall a justice ever reading parts of a concurring opinion aloud in Court.

He said Roberts' opinion was "too dismissive" of the important interest in "ensuring all people have equal opportunity regardless of their race."

"School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means," Kennedy wrote. He pointed to such "race conscious" mechanisms as strategic site selection of new schools and recruiting students and faculty in a "targeted fashion."

Civil rights groups issued measured reactions, praising the fact that while the two plans in Seattle and Louisville might have been struck down, the Court left open the possibility that schools could consider race in some limited fashion.

"There is good news," Wade Henderson, president of the Leadership Conference on Civil Rights, said in a statement. "The Court affirmed that school districts can still take race-conscious measures to achieve diversity in K-12 public education."