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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
The Supreme Court ended its term today with a landmark decision on race. By a five-to-four vote, the court declared that public schools - even those once segregated by law - may not use race as a factor in assigning students to schools. Those assignments could be part of an effort to desegregate the schools or to prevent resegregation.
Justice Anthony Kennedy, voting with the majority but issuing his own opinion, left the door open to other considerations of race in order to achieve racial diversity.
Coming up, we'll chat with a school board member who'll have to work with the decision.
First, NPR's Nina Totenberg reports.
NINA TOTENBERG: This was one of those rare moments of real Supreme Court drama with three justices reading from their opinions. Chief Justice John Roberts speaking for himself, and justices Scalia, Thomas and Alito said that racial balancing cannot be transformed into a constitutional practice by labeling it diversity. The way to stop discrimination based on race, he declared, is to stop discriminating on the basis of race.
But Roberts fell one vote short of a court majority that would have treated the goal of racial diversity as deeply suspect. Justice Anthony Kennedy, also speaking from the bench this morning, specifically rejected the Roberts' view.
Fifty years of experience since Brown versus the Board of Education should teach us that the problem defies such an easy solution, said Kennedy. The Roberts' plurality, he said, would seem to ignore the problem of de facto segregation and mandate that state and local school authorities must accept the status quo of racial isolation in schools. I cannot accept that, he said, for I believe that view is profoundly mistaken.
Today's ruling came in two cases - one from Seattle, Washington, the other from Louisville, Kentucky. It's believed that hundreds of school systems around the country have similar programs. In Seattle, high school students rank which schools they want to go to in order of preference. If a school is oversubscribed, the district uses a series of tiebreakers to decide who gets to go to that school.
The first tiebreaker is if the student has a sibling already attending, and the second is race, if the school is more than 10 percentage points more or less than the district's overall white-nonwhite ratio.
In Louisville - once segregated by law - where the schools were under court order to desegregate until six years ago, the county has kept in place some of the court-ordered measures. The current system combines school choice, neighborhood school assignment and assignment by race in order to maintain schools are the between 15 and 50 percent minority.
Justice Kennedy's pivotal opinion at the Supreme Court today rules out both these plans, at least as they stand now, because they classify individual children by race, and because the districts, he says, have not tried other less onerous means of desegregation.
Former Solicitor General Ted Olson knows that today's decision is much like the court's first affirmative action ruling in 1978, when four justices voted to allow affirmative action, four voted against the affirmative action and one justice split the difference.
Mr. TED OLSON (Former U.S. Solicitor General): The one in that case was Justice Powell, who didn't quite go along with the majority, but kept the idea of affirmative action alive. And the replacement for Justice Powell was Justice Kennedy on the Supreme Court. So here we are decades later, Justice Kennedy in a sense saying the same thing.
TOTENBERG: Goodwin Liu of the University of California Law School at Berkeley analyzes Kennedy's vote this way.
Professor GOODWIN LIU (Law, University of California Law School, Berkeley): He's created a dichotomy in the law between individual classification, which he thinks deserves the highest degree of scrutiny, and is, in almost all cases, unconstitutional versus other kinds of race consciousness, which do not classify kids individually and would be in his view basically fine.
TOTENBERG: But civil rights advocates like Ted Shaw of the NAACP Legal Defense Fund made no bones today about their disappointment.
Mr. THEODORE SHAW (Director-Counsel; President, NAACP Legal Defense Fund): The court is showing a penchant for taking hollow decisions like Brown versus the Board of Education, and leaving them hollow. I'm troubled by it. I'm not happy. But it could have been worse.
TOTENBERG: It could have been worse because Kennedy did not side with the Roberts' plurality in disdaining diversity in education as a compelling state goal. And Kennedy said school districts should be free to devise race-conscious measures other than individual student assignments for dealing with the problem of racially segregated schools.
Measures such as drawing school district blinds intentionally to maximize school desegregation, locating new schools in areas that will draw from diverse neighborhoods, recruiting students and faculty on the basis of race, and tracking enrolment performance and other statistics by race.
Francisco Negron, counsel for the National School Boards Association, took heart from that.
Mr. FRANCISCO NEGRON (General Counsel, National School Boards Association): We, at school boards, have our work cut out for us. We have to go back to our communities. We have to engage them. We have to engage our parents, our teachers and come up with plans that make sense. And I'm confident that our school boards and our communities can do it.
TOTENBERG: But civil rights advocates pointed out that all of Kennedy's alternatives had already been tried in Louisville and Seattle. Some experts suggested there may be other ways to assign students without directly considering race. The Berkeley Unified School District in California, for example, uses neighborhood as one criterion in student assignment, and since neighborhoods are often segregated by housing pattern, that can be something of a proxy for student assignment by race.
But Roger Clegg of the conservative Center for Equal Opportunity thinks that will be difficult.
Mr. ROGER CLEGG (President, Center for Equal Opportunity): You know, school boards are, I think, going to be very reluctant to start down this road because they know that they're starting out with four votes against them, even if they are very careful when it comes to how narrowly tailored the plan is.
TOTENBERG: Gary Orfield, director of the Civil Rights Project at UCLA, agrees that saving school desegregation programs will be difficult, but, he adds, not impossible after today's ruling.
Mr. GARY ORFIELD (Director, Civil Rights Projects, UCLA): This creates needless and unnecessary burdens. It doesn't - the decision don't really reflect an understanding of what Louisville is actually doing. And they really have almost no serious treatment at all with the realities of the big urban school district. But, you know, they don't close the door completely either and we're going to work with school districts to figure out what can be done, answer the questions that they say aren't answered, and try to help save what's left.
TOTENBERG: In the courtroom this morning, perhaps the highest moment of drama came when Justice Stephen Breyer read for 21 minutes a summary of his lengthy written dissent, a dissent that he said is twice as long as any he has ever written.
The courtroom was dead silent as he accused the court majority of breaking faith with the landmark Brown versus the Board of Education decision. This country, he said, has made great strides since President Eisenhower had to order the 101st Airborne Division into Little Rock to enforce the Supreme Court school desegregation order 50 years ago.
Indeed, many of the school boards that once spurn desegregation now strive for it. They don't want to use forced busing, he said, and have devised other means to achieve it - namely student assignment programs that take race into account when necessary. And the school boards have asked us, he said, not to take from their hands the tools they believe are needed to overcome the problems of cities divided by race and poverty.
The Roberts' plurality would deny them that modest request. They are wrong to do so. The last half-century has witnessed great strides towards racial equality, said Breyer, but we have not yet realized the promise of Brown versus the Board of Education. The Roberts' plurality would break that promise, said Breyer. This is a decision that the court and the nation will come to regret.
Nina Totenberg, NPR News, Washington.