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."

Liberals on the court, however, did not share the optimism. Justice Steven Breyer rolled his eyes at times as he listened to Roberts and Kennedy read their opinions from the bench. When it was his turn to read his dissent, he lamented that the Court had turned its back on the "promise of Brown," referring to the 1954 Supreme Court decision Brown v. Board of Education, which outlawed separate systems of education for black and white schoolchildren.

Breyer wrote that Thursday's decision will "threaten" the "great strides" that have been made toward racial equality. "This is a decision that the Court and the nation will come to regret," he said.

The cases are the first major battle over race for the newly constituted Supreme Court, led by Chief Justice John Roberts, and they could set important guidelines for the use of racial preferences in the future.

The Louisville case was brought by Crystal Meredith, who tried to enroll her 5-year-old son in kindergarten a couple of blocks from their home in the Kentucky city. But officials pointed her elsewhere, to a school that was a 90-minute bus ride away.

A school that was closer to the family's home, officials told her, couldn't accept another white student such as her son Joshua that year.

Meredith, a single mother, wasn't looking for a fight. After driving Joshua across town to school every day, she decided she'd passed by the closer school long enough.

She sued and is now at the center of the most significant legal battle over race to reach the Supreme Court in years.

"Joshua was denied entrance to a school for no other reason than racial classification," said Teddy Gordon, Meredith's attorney. "There was room at the school. There were plenty of empty seats. This was a racial quota."

Meredith and other parents who sued the Louisville school district argued that the racial assignment plans amounted to unconstitutional race discrimination.

The school district contended that it wasn't discriminating against anyone, but was instead trying to maintain racially balanced and integrated schools for the benefit of all.

The Louisville school district adopted its plan in 2001, and it requires schools to seek a black student enrollment of at least 15 percent and no more than 50 percent.

Those guidelines apply primarily at the elementary school level and in admissions to special programs, such as magnet schools.

The justices heard arguments in the case in December, along with a similar case from Seattle.

The case from Seattle raised similar legal issues to the one from Louisville, though it involved the city's public high schools.

Under its plan, students could choose to attend any of the city's 10, four-year high schools unless they were "oversubscribed," with more students than the school could accommodate.

In that case, the school district looked at several factors when assigning students, including whether their race would contribute to a "racial imbalance" in the school.

A group of parents challenged the school district's assignment plan after their children were not assigned to the high schools of their choice.

The Bush administration has sided with the parents in both cases, arguing that race-based assignment plans violate the Constitution's equal protection clause.

In court papers, Justice Department lawyers said the assignment plans involved "outright racial balancing," which is "patently unconstitutional."

They argued that the plans were akin to quotas and were therefore illegal after two 2003 Supreme Court affirmative action decisions.

The Justice Department also referred to Brown v. Board of Education in its legal papers, arguing that the landmark case prohibits schools from "intentionally classifying students on the basis of race."

The parents in both cases lost in the lower courts.

The San Francisco-based federal appeals court ruled last year that the Seattle plan was a legitimate way of "securing the educational and social benefits of racial (and ethnic) diversity, and in ameliorating racial isolation."

But the issue deeply divided the appeals court judges and produced several impassioned decisions.

Conservative Judge Alex Kozinski wrote a separate opinion defending the assignment plan, which he said "gives the American melting pot a healthy stir without benefiting or burdening any particular group."

But Judge Carlos Bea and three others dissented, arguing the district was "engaged in simple racial balancing."

"Up to now, the American 'melting pot' has been made up of people voluntarily coming to this country from different lands, putting aside their differences and embracing our common values," wrote Bea, who is Hispanic. "To date, it has not meant people are told whether they are white or nonwhite, and where to go to school based on their race."

But a majority of the California-based appellate court judges said the plans were permissible according to principles in the Supreme Court's 2003 affirmative action decisions. Those decisions were the justices' most recent rulings on race.

The Cincinnati-based federal appeals court approached the issue differently: Its unsigned opinion was just three paragraphs long and endorsed the reasoning of the trial judge who upheld the Louisville plan.

The judge had also focused on the Supreme Court's 2003 decisions in ruling that the Louisville plan was constitutional.

In those decisions three years ago, the Supreme Court narrowly upheld race-conscious admissions policies at the University of Michigan Law School, so long as a student's race was one of many factors considered in admissions.

The Court said the university's interest in maintaining diversity was compelling enough to justify taking race into account. The Court then rejected an admissions plan at the undergraduate level, saying it was too rigid.

But the decision upholding affirmative action at the law school was 5-4, with Justice Sandra Day O'Connor casting the deciding vote.

Thursday, Justice Sam Alito, who took O'Connor's place earlier this year, voted with the majority against the race plans.