Friday, June 29, 2007

Court 5-4, Where Are You?

Posted By on Fri, Jun 29, 2007 at 1:00 PM

The U.S. Supreme Court ended its term on a suitably contentious note Thursday, a 5-4 decision to invalidate race-based school assignment programs in Seattle and Louisville. Conservatives are predictably pleased, and liberals predictably perturbed.

I suppose I'm more perturbed than pleased, but it does strike me that the Court may have reached the right outcome in the particular cases involved, albeit for the wrong reasons and with unfortunate consequences. The ruling has little immediate or direct effect on Nashville's public schools, where explicit racial criteria for school assignment are not presently in play, but it could figure into future reform efforts. The Court's plurality opinion (written by Chief Justice Roberts with three others in tow) didn't offend me by characterizing the school plans in question as having very small effects, and as overly focused on the race of a particular individual. Even many liberals agree (this one, anyway) that using a person's race as the sole deciding factor for an important social outcome (like admission to a sought after school) is dodgy. The Court sorted that out in a reasonable way in the university affirmative action cases decided in 2003 - rejecting the University of Michigan's undergraduate admissions formula that assigned points by race, but accepting its law school process that considered race qualitatively as one among many factors.

To the extent that the Court now believes that this logic can be applied in K-12 school assignment, yesterday's outcome doesn't alarm me all that much, and on that score I part company with many on the left. The Seattle paper today reports on how school officials there are already rethinking their school assignment process along these lines. There are also some arguments worth considering that school systems can achieve diversity aims with socioeconomic rather than racial criteria.

But the Roberts opinion did offend me by cultivating denial that there are educational and social benefits that flow from diversity rather than racial isolation, and by rejecting the idea that as a society we have a compelling interest in avoiding that kind of isolation. Roberts' opinion substituted hyperbole for thoughtfulness, as when he wrote that "accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society." This kind of straw-man argument confirms suspicions on the left that the Court's conservative wing has an agenda, doing what it must to reach an ideologically preferred outcome and then filling in the logic behind it. No one is advocating racial balancing for its own sake, with no interest in the social and educational benefits that follow, as a compelling state interest.

Fortunately, that silliness didn't carry the day because the fifth justice who made up the majority, Anthony Kennedy, wrote a concurring (and in legal terms "controlling") opinion limiting the anti-integration zeal of Roberts and buddies. Kennedy's money passage: "This nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."

For Nashville, the effect of the ruling is minimal at present because the public schools do not have


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