America is one of the most racially and ethnically diverse
countries in the world. Yet 52 years after Brown v. Board of
Education - the landmark Supreme Court decision that struck down
segregation - US classrooms are growing increasingly segregated.
In part, the racial divide reflects the persistence of segregated
housing patterns and the stifling grip of poverty. But it also
reflects national disagreement and confusion over how best to
address the issue of race.
Monday, the US Supreme Court takes up two cases that confront the
heated debate over race. On one side are those who believe
affirmative action and other race-conscious programs are necessary
to fight the effects of discrimination and inequality. On the other
side are those who believe the Constitution mandates a colorblind
approach to race relations - that government programs granting
benefits based on a person's race are just as illegal as withholding
benefits because of a person's skin color.
At issue in the two cases are race-based student enrollment plans
at public school districts in Seattle and in Louisville, Ky. Both
plans were designed by the local school boards to voluntarily
achieve racial integration to provide a diverse learning environment
for the benefit of all students. Both plans are under attack by
local parents who say the use of race to maintain a racial balance
amounts to an unconstitutional form of government discrimination.
The cases confront fundamental issues that stretch back to 1954,
when the high court ruled in the Brown case that racial segregation
violates the constitutional principle of equal protection.
"This is about what is left, if anything, of Brown v. Board of
Education," Theodore Shaw, president of the NAACP Legal Defense and
Educational Fund, said in a recent debate hosted by the Century
Foundation. If the high court strikes down the Seattle and
Louisville programs, "it will be a reversal of historic
proportions," he said.
The Brown decision is also the starting point for those
challenging the plans, including the Bush administration. But they
draw a different lesson from the landmark case.
"In Brown v. Board of Education the court held that intentionally
classifying students on the basis of race violates the equal
protection clause, and declared the ultimate objective ... to be
achieving a system of determining admission to the public schools on
a nonracial basis," writes Solicitor General Paul Clement in his
brief to the court.
The Supreme Court last considered a similar issue in a 2003 case
over race-based admissions procedures at the University of Michigan
Law School. The court split 5 to 4, with then-Justice Sandra Day
O'Connor casting the deciding vote upholding the affirmative-action
plan as a means to bring racial diversity to the elite law school.
Justice O'Connor's retirement earlier this year opens the door
for a possible shift at the high court, with Justice Anthony Kennedy
now potentially in position to cast the deciding vote in the Seattle
and Louisville cases, legal analysts say. Justice Kennedy dissented
in the Michigan Law School case and was sharply critical of what he
said was an overly permissive standard of review used by O'Connor.
"Were the courts to apply a searching standard to race-based
admissions schemes, that would force educational institutions to
seriously explore race- neutral alternatives," Kennedy wrote.
The enrollment plans under challenge in Louisville and Seattle
are similar in that they are both attempts to address de facto
segregation tied in part to housing patterns. The voluntary
desegregation programs are aimed at preventing the school districts
from sliding into a starkly segregated environment with minority
students isolated in inner-city schools and white students isolated
in suburban schools.
To achieve a meaningful mix, both school boards decided they
would have to use race as a factor in deciding which students should
attend particular schools. …