Segregation May Not Be Remedied
More initial reaction on this decision here from Adam B at the Daily Kos. As he notes, Ninth Circuit Judge Alex Kozinski, a Reagan appointee, explained well why the Supreme Court got this so wrong:
When the government seeks to use racial classifications to oppress blacks or other minorities, no conceivable justification will be sufficiently compelling.... When government seeks to segregate the races , the courts will look with great skepticism at the justifications offered in support of such programs, and will reject them when they reflect assumptions about the conduct of individuals based on their race or skin color.... Programs seeking to help minorities by giving them preferences in contracting, see, e.g., Adarand, and education, see, e.g., Bakke, benign though they may be in their motivations, pit the races against each other, and cast doubts on the ability of minorities to compete with the majority on an equal footing.Update:
The Seattle plan suffers none of these defects. It certainly is not meant to oppress minorities, nor does it have that effect. No race is turned away from government service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability. ...
It is difficult to deny the importance of teaching children, during their formative years, how to deal respectfully and collegially with peers of different races. Whether one would call this a compelling interest or merely a highly rational one strikes me as little more than semantics. The reality is that attitudes and patterns of interaction are developed early in life and, in a multicultural and diverse society such as ours, there is great value in developing the ability to interact successfully with individuals who are very different from oneself. It is important for the individual student, to be sure, but it is also vitally important for us as a society. ... The school environment forces students both to compete and cooperate in the classroom, as well as during extracurricular activities ranging from football to forensics. Schoolmates often become friends, rivals and romantic partners; learning to deal with individuals of different races in these various capacities cannot help but foster the live-and-let-live spirit that is the essence of the American experience. I believe this is a rational objective for an educational system—every bit as rational as teaching the three Rs, advanced chemistry or driver’s education. Schools, after all, don’t simply prepare students for further education, though they certainly can and should do that; good schools prepare students for life, by instilling skills and attitudes that will serve them long after their first year of college.
Lyle Denniston at the SCOTUS blog has more here, and Christy Hardin Smith has commentary at FireDogLake here.
Jack Balkin points out that the actual holding of the case is more limited than my post above suggests, because Justice Kennedy's concurrence did not agree with some of the more difficult portions of Chief Justice Roberts' lead opinion. Take a look at his analysis. Armando has additional thoughts at TalkLeft. Eric Muller opines that Justice Kennedy essentially got the case right at Is That Legal?.
Scott Lemieux notes that "Given the modesty of the Seattle program -- which used race only as a tiebreaker, making the potential injustices of the classification particularly dubious -- it is clear that no affirmative action program is going to survive an encounter with the Roberts Court in its current configuration." He goes on to emphasize the Breyer dissent, including this graf:
Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.Finally, do not miss the Stevens dissent, also noted by Lemieux:
The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.