Sharply Divided Supreme Court Votes 5-4 on Schools’ Integration

By Anastacia Mott Austin

In what will likely be called a landmark decision regarding school integration, a distinctly divided U.S. Supreme Court voted 5-4 today to limit schools’ abilities to maintain diversity.

An unusually passionate discussion ensued in the Court. CNN’s Jeffrey Toobin reported that Chief Justice John Roberts compared the inability of a small number of white students to attend the school of their choice to black students in the 1950s being denied access to integrated education, to which Justice Stephen Breyer responded, "You’ve got to be kidding me."

The normally temperate atmosphere at this level of the court was further unsettled as Breyer added, "Never, in the history of this court, have so few done so much so quickly," referring to conservative Justices Roberts and Alioto pulling the Court to the right for many recent decisions. The Supreme Court has voted a close 5-4 in 22 recent cases.

Though both sides of the argument agreed that the goal was to fairly integrate schools’ racial diversity, the methods used by two schools in Seattle, Washington, and Louisville, Kentucky were seen as contrary to the 1954 Brown vs. Board of Education ruling in 1954.

"Before Brown, schoolchildren were told where they could and would not go to school based on color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again – even for very different reasons," wrote Chief Justice John Roberts in the 41-page decision.

The justices voting with Roberts to limit the schools’ methods were Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy – who was seen as the swing vote.

Justice Kennedy, while voting with the majority, did state that he felt schools should be allowed to employ race as a criteria for admittance to school in limited circumstances. He wrote, "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue," but added that the schools involved in the current cases used "crude measures" that would "threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand."

And while Kennedy agreed that the methods used in these particular cases were not suitable, he clarified where he differed from the majority opinion. "To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken. In administering public schools, it is permissible to consider the schools' racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition."

He added that there were other ways in which to ensure racially balanced schools, such as "strategic site selection of new schools."
At Seattle schools, children are allowed to attend any school of their choice, unless there are more candidates than available spots. At that point, the schools employ what they term a "tie-breaker" policy, in which the applicant’s race is considered in comparison to the existing racial balance at the school.

In 2001 a group of chiefly white parents sued the school district, claiming their children were denied admittance to the schools of their choice based on their race.

In Louisville, Kentucky, schools were overseen by federal court mandates ensuring school integration for many years, and when those mandates were removed in the late 1990s, school districts retained many of the policies. Among those was the goal that schools represent the racial ratios of their surrounding communities. The schools in question in the case required that the majority of their public schools have between 15 and 50 percent African-American students, which reflects the local population.

A parent of a child who was not allowed to attend the school closest to her neighborhood and had to take a three-hour bus ride sued the school district. The parent in that case was white, though several African-American parents supported the case.

The dissenting liberal judges felt strongly that today’s decision was a step in the wrong direction. Justice Stephen Breyer wrote in the dissenting opinion, "To invalidate the plans under review is to threaten the promise of Brown."

And while Justice Clarence Thomas agreed that integration was a noble goal, the way to get there must be found in a way that somehow does not use race as a factor. "What was wrong in 1954 cannot be right today. The plans before us base school assignment decisions on students’ race," said Thomas. "Because ‘our Constitution is colorblind, and neither knows nor tolerates classes among citizens,’ such race-based decision-making is unconstitutional."

Seen as a victory for conservatives, the ruling has underscored the anticipated divide among the Supreme Court justices, and with Roberts’ and Breyer’s heated comments today, we should anticipate more to come.

Major school-integration decisions decided by the U.S. Supreme Court:

1954 -- Brown v. Board of Education. The Court decides by unanimous rule that racially segregated public schools are unconstitutional and "separate educational facilities are inherently unequal."

1968 -- Green v. New Kent County, Va., decides that "freedom of choice" plans were ineffective at actually desegregating schools. Supreme Court tells school officials they have a duty to eradicate segregation "root and branch."

1971 -- Swann v. Charlotte-Mecklenberg Board of Education, N.C. The decision permits busing of students and reforming school district lines to eliminate school segregation.

1978 -- Regents of the University of California v. Bakke. Decision eliminates racial quotas but allows the idea of affirmative action by saying admissions policies can consider race in applications.

1991 -- Board of Education of Oklahoma City v. Dowell. School districts may let go of forced busing of students when desegregation has been met, even if it will culminate in a return to segregated schools.

2003 -- Gratz v. Bollinger and Grutter v. Bollinger. Court forbids the use of strict procedures that give race-based points for admission to the University of Michigan, but allows them to take race into account when looking at a "holistic review" of each applicant.

2007 -- Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education. The Court rules against school diversity plans that take students’ race into account when determining school assignments.