June 28, at the end of the Supreme Court's last term, Chief Justice John Roberts, in a 5-4 decision, held unconstitutional school assignment rules in Seattle and Louisville. To prevent creation of educational ghettos the rules denied enrollment to students whose race would cause its black-white ratio to deviate too far from the city's. A small number of white students who didn't get their first choice sued claiming racial discrimination. Roberts' sound-bite peroration -- "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race[.]" gave me the feeling he was making a claim for historic stature alongside John Marshall Harlan's dissent in Plessy v. Ferguson (which in 1896 had enshrined segregation in constitutional law). Harlan wrote: "Our constitution is color blind...," rejecting segregation. In the Seattle-Louisville case, Roberts rejected integration. Justice John Paul Stevens dissent wrote that Roberts's opinion reminded him of Anatole France's observations: "[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."
Justice Thomas wrote at great length concurring with Roberts. Justice Kennedy also concurred, although he hedged by asserting that while the school districts' aims were constitutional and, indeed, laudable, they had gone about it the wrong way.
Justice Breyer wrote a 77-page dissent, in which Stevens, Souter and Ginsburg joined, all of which he read from the bench, to give it extraordinary emphasis. He recounted the considerable racial integration that occurred since Brown, but that recently progress has stalled and reversed direction. In response many districts, including Seattle and Louisville, devised plans to maintain or extend integration,.
He pointed to numerous Supreme Court and other decisions that approved affirmative action or quota plans to achieved or maintain integration. In the principal case he and Roberts debated, Swann v. Charlotte Mecklenburg Board of Education, Chief Justice Warren Burger in 1971 wrote that: school "authorities ... might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole."
Breyer pointed to the recently decided, Grutter v. Bolinger, where the Supreme Court upheld University of Michigan law school's affirmative action plan as a means to promote diversity. Grutter relied not only on diversity as an educational measure, but as preparation to function in a diverse society.
He observed that the white child who did not get his first choice of school may have been disappointed, but was not stigmatized, the consequence of the many rules that had separated blacks and had been held unconstitutional. Refusal to admit said nothing about the rejected white child's aptitude or ability.
Breyer pointed to considerable evidence that minority children do better academically in integrated schools. While there is some disagreement, the evidence is strong enough to allow a democratically elected school board to take it into account in setting school assignment standards.
But Roberts reasoned that Brown v. Board of Education, which in 1954 held racial segregation unconstitutional, also made unconstitutional any plan that took race into account even if its purpose were to prevent segregation. In support he combed the briefs and arguments of Thurgood Marshall and other lawyers for black plaintiffs in Brown as well as the Harlan dissent. There he found:
...the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: "The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race."
... "As counsel who appeared before this Court for the plaintiffs in Brown put it: 'We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.'
The record is clear, however, that Marshall decidedly would not have supported the Roberts position. In Regents of Univ. of Cal. v. Bakke, he supported the constitutionality of the University of California's affirmative action plan:
Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.
It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible.
Marshall expressed the same view in lots of cases. Anyone would have to hallucinate to believe that Thurgood Marshall would equate racial segregation with regulating school choice to maintain racial balance.
I was among those who argued alongside Marshall in Brown. Nobody at that time had heard of affirmative action. It had not yet been recognized as a public issue until required of the construction industry by Richard Nixon in 1962 and as national policy by Lyndon Johnson in 1965. It never occurred to me or anyone else that we were arguing for a color blind constitution that would prohibit government from affirmatively preferring African-Americans by promoting integration. All others among surviving counsel for the Brown plaintiffs emphatically disagree with the Roberts characterization and I am confident that those no longer with us would disagree too. Judge Robert L. Carter, whom Roberts and Thomas cite as supporting their position, has contradicted them: ''All that race was used for at that point in time was to deny equal opportunity to black people ... It's to stand that argument on its head to use race the way they use it now.'' William T. Coleman Jr., another lawyer among counsel in Brown, later secretary of transportation in the Ford administration, said, ''The majority opinion is 100 percent wrong ... It's dirty pool to say that the people Brown was supposed to protect are the people it's now not going to protect.''
United States District Judge Jack B. Weinstein, also counsel in Brown, has said that Chief Justice Roberts was completely wrong in citing argument made against racial distinctions in Brown as grounds for prohibiting schools from considering race to prevent them from becoming de facto segregated.
Brown was briefed and argued 11 to 12 years before enactment of the Civil Rights Act of 1964, longer still before the Voting Rights Act of 1965 and the Fair Housing Act of 1968. Plaintiffs' arguments, Brown and enactment of those laws were in response to the status of African-Americans as a separate, subjugated caste.
The Roberts argument from John Marshall Harlan's "[o]ur constitution is color blind" is also out of context. In context, Harlan excoriated segregation and the Plessy majority for creating a caste system, not for making a sterile distinction between whites and blacks:
Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons ... The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches ... But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color blind-and neither knows nor tolerates classes among citizens.
Brown, too, was not directed at mere differentiation. The opinion said: "Separate educational facilities are inherently unequal." During conferences in which the Court considered Brown, Earl Warren told the other Justices that he "had come to the conclusion that the doctrine of separate-but-equal rested upon the concept of the inferiority of the colored race. He did not see how Plessy and its progeny could be sustained on any other theory..." He did not say, nor did the opinion say, that differentiation in itself was objectionable.
The Roberts-Breyer conflict over what is a precedent
Alice in Wonderland is a useful key to unraveling some of the technical disagreements between the majority and dissent:
When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master -- that's all.
Roberts goes head to head with Breyer on the significance of the words, holding and dictum and their relationship to stare decisis, the doctrine that tells courts to stand by earlier decisions with facts essentially the same as those under consideration. A commonly accepted definition of holding is a proposition necessary for decision of a case. Dictum is a stray remark or a proposition not necessary for decision of a case. Those words are at the center of the legalistic dispute between Roberts and Breyer. Breyer asserts that numerous cases, all of which differ somewhat, are precedents that uphold the Louisville-Seattle plans. Roberts says those cases are not precedents because they contain only dicta, not holdings.
Central to this difference between them on the question of precedent is the fact that Louisville once had been segregated by law; Seattle had been sued for having racial concentrations. But now Louisville no longer is segregated by law. The Seattle case never was decided; in the face of the suit Seattle instituted a number of plans, including the one that came before the Supreme Court. Louisville adopted its plan to avoid slipping back into segregation. Roberts argues that if Louisville and Seattle are segregated, it is de facto segregation, which would not support any desegregation remedy, let alone a quota plan. Breyer argues that Seattle set up its plan in response to the law suit that credibly charged it with discrimination. Louisville had been de jure segregated and set up its plan to prevent returning to segregation.
Part of the difference between Roberts and Breyer turns on whether the de facto -- de jure distinction should matter given the indistinct differences between the two in these cases. The Swann case about which they disagree involved a plan in a district that was under a desegregation decree for having been de jure segregated. Some of the other cases Breyer relied on were not under any such decree. One case, that of the Michigan law school, involved higher education. Other cases involved state courts or single Justice decisions by a Supreme Court Justice. Others had their own peculiarities. Justice Breyer said they all had in common validating a plan that took race into account to promote integration. Roberts said each had a special factor that deprived it of the label "holding" and, therefore, could not serve as a precedent for what Louisville and Seattle had done.
Breyer taught at Harvard law school and surely knows the difference between holding and dictum. It's among the first things taught to entering law students. Roberts is widely regarded as a first rate lawyer and also knows the difference. Five Justices apparently thought that Roberts understanding of holding is correct. But four disagreed. Obviously the case did not turn on which of the Justices learned their law school lessons best. In these close cases, where multiple factors go into the decision and even subordinate propositions on which the decision rests, the Justices values' will dominate technical categories.
Roberts, et al did not value integration. Indeed, Justice Thomas saw no value in it at all. Humpty Dumpty was right. Roberts was the master whose definition carried the day. Except possibly for Justice Kennedy. He is the mystery factor that may determine the future. Dominating any consideration of where he may ultimately arrive in this kind of case is that he never has upheld taking race into account in any case that might be classified under affirmative action. He highly values integration. But he was not satisfied that the school districts went about promoting it the right way. For those also who value integration, the problem may be that the right way, to Kennedy's mind, is incapable of achievement.
What does the future hold? Is it possible that Justice Kennedy's concurrence has within it the seeds of victory for integrationists, like Justice Powell's decision in Bakke? In that case he agreed with four conservative Justices that affirmative action in higher education based on race was unconstitutional. But race as a factor among others which promoted diversity as an educational measure affirmative action was permissible. That made five votes for affirmative action as constitutional if administered as one factor among others to promote diversity. Since then it has flourished except in the few places where it is prohibited as a mater of state law.
But, Kennedy's conditions for affirmative action in elementary and high schools are not clear and possibly not attainable. He writes of the purpose served by the Seattle and Louisville failed effort as "our highest aspirations." He describes diversity as a "compelling interest." A district would go at least part way towards satisfying him if it made clear, he writes, "who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of two similarly situated children will be subjected to a given race-based decision." He would like that a "district composed of a diversity of races, with fewer than half of the students classified as 'white,'" to explain why it " ... has employed the crude racial categories of 'white' and 'non-white' as the basis for its assignment decisions."
He would not disapprove of race based integration measures that take the form of site selection of new schools; attendance zones that recognize the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a "targeted fashion;" tracking enrollments, performance and other statistics by race. (As to site selection, Breyer points out that Seattle has built one new high school in the past 44 years.)
He writes that while the districts assert that there is no other way to avoid racial isolation in the school districts, they have not provided support for that proposition.
He might be satisfied by a "facially race-neutral means," if necessary "a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component."
He concludes: "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." But he does not include an assessment of whether the means he proposes to achieve that end would work. If a school board were to ask me about what to do in these circumstances, I might propose ways to take advantage of the space the Kennedy opinion possibly may provide. There are other affirmative action cases too numerous and complex to factor in, which may be useful. The facts and particularly the history of districts and details of plans may be relevant. These are not easy times for school administrators, particularly those who believe in the value of integration in education.