High Court's New Race Ruling Echoes in Schools

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A Supreme Court ruling may have profound implications for the nation's schools. The high court yesterday invalidated two voluntary desegregation plans because they used race as a basis for assigning some students to schools in an effort to end racial isolation or prevent re-segregation.

The high court was bitterly and closely divided, as NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Conservatives had hoped that the ruling would be a clear blow to the concept of racial diversity as a vital public policy. Civil rights advocates worried that the ruling would obliterate the concept that race can be a factor in remedying societal discrimination. In the end, the court divided with four votes on each side and Justice Anthony Kennedy splitting the difference.

At issue were voluntary school desegregation plans in Seattle, Washington, and Louisville, Kentucky. Louisville, once segregated by law, only got out from under a court order to desegregate six years ago, and the school system voluntarily kept in place and modified some of the court-ordered measures. The current system combines school choice, neighborhood school assignment and assignment based on race in order to maintain schools that are between 15 and 50 percent minority.

Seattle has a system that allows all high schoolers to rank the school of their choice, and if a school is over subscribed, race is one of the tiebreakers in order to keep the schools within range of reflecting the districts over all white/non-white makeup.

Chief Justice John Roberts, speaking for himself and Justices Scalia, Thomas, and Alito, said that any consideration of race is invalid in these circumstances, because racial balancing, he said, has no stopping point. Racial balancing, said the chief justice, cannot be transformed into a constitutional practice by labeling it diversity. Justice Kennedy, while agreeing that student assignments based on race are generally unacceptable, rejected the Roberts' view that diversity is just another form of unconstitutional racial balancing.

The Roberts plurality, he said, would seem to ignore the problem of de facto segregation and instead mandate that state and local school authorities must accept the status quo of racially isolated and distinct schools.

I cannot accept that, said Kennedy, for I believe that view is profoundly mistaken. Justice Kennedy's opinion rules out the Seattle and Louisville plans as they stand now because they classify individual students by race. At the same time, however, he endorses other race-conscious strategies such as racial gerrymandering of school districts to provide greater racial mixing.

Gary Orfield, director of the Civil Rights Project at UCLA, has studied and promoted racial desegregation plans for decades.

Professor GARY ORFIELD (Director, The Civil Rights Project, UCLA): Justice Kennedy is (unintelligible) that kind of a model, but he has not slammed the doors. He's just made it a lot more complicated.

TOTENBERG: Goodwin Liu, a law professor at the University of California at Berkley, agrees.

Professor GOODWIN LIU (Law, University of California Berkeley): The door is not closed, and so school districts will then have to go back to the drawing board to figure out based on their own demographics, neighborhood patterns, school objectives, how - what kind of flexibility they have and how they can design creative solutions to racially integrate their schools.

TOTENBERG: Civil rights experts point out that most districts have already tried the alternative strategies that Justice Kennedy's pivotal opinion recommends, but there may be others.

Professor Liu notes that the Berkeley United School District in California, for instance, uses neighborhood as one criterion for student assignment. And since neighborhoods are often segregated by housing pattern, that can be something of a proxy for race. But former Solicitor General Ted Olson thinks that's unlikely to fly.

Mr. TED OLSON (Former U.S. Solicitor General): The day is over when you can say, well, we'd let you go to that school but you'd be one more white person, or one more black person, or one more Hispanic person, and we can't tolerate that. I think that day is over.

TOTENBERG: Still, as experts on both sides acknowledged yesterday, while the effort to allow race as a consideration in school assignments failed, so too did the conservative drive to eliminate race as a factor at all in such decisions.

Ted Shaw is counsel for the NAACP Legal Defense Fund.

Mr. TED SHAW (Counsel, NAACP Legal Defense & Educational Fund): There's an ideological war going on here with respect to not only the place of race in this country, but whether we should be able to do anything to address racial inequality on a voluntary basis.

TOTENBERG: That ideological war was on full display in the written and oral defense from the bench yesterday. Invoking the Supreme Court's landmark Brown vs. the Board of Education decision, Chief Justice Roberts said before Brown, school children were told where they could and could not go to school based on the 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.

Justice Stephen Breyer, writing for himself and Justices Stevens, Souter and Ginsberg, was openly outraged by Roberts' reference to Brown. Breyer contended that there's a big difference between a system that excludes children and one that seeks to include them.

In a dramatic 21-minute oral summary of his lengthy written dissent, Breyer, grim-faced, said the nation has made great progress since President Eisenhower ordered the 101st Airborne Division to Little Rock 50 years ago to enforce a Supreme Court desegregation order.

Many of the school boards that once spurned desegregation now strive for it. They don't want to use forced bussing, he said, and have devised other means to achieve it, namely student assignment programs that take race into account when necessary. These 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. To invalidate the plans at issue in Louisville and Seattle, said Breyer, is to threaten the promise of Brown vs. the Board of Education. The Roberts plurality's position would break that promise, said Breyer. This is a decision that the court and the nation will come to regret.

The school desegregation decision was one of three yesterday in which Justice Kennedy played the decisive role as the court wrapped up its current term. In an important death penalty case, the court by a 5-to-4 vote blocked the execution of a convicted Texas murderer saying that the lower courts should have considered psychiatric evidence about his mental illness.

Scott Panetti, who killed his in-laws in front of his wife and terrified daughter, was institutionalized more than a dozen times over a 10-year period and repeatedly diagnosed as suffering from delusions and schizophrenia. But he understood the reason, the state said it was going to execute him. His lawyers said he didn't believe it, that he thought that the state was trying to prevent him from preaching God's word. But the state and the lower courts said awareness of the official reason was enough.

Yesterday, the Supreme Court said it was not. Justice Kennedy wrote the court's decision, this time siding squarely with the court's liberal members. The states retributive purpose is not served, said Kennedy, if the prisoner's mental state is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts.

Kennedy also wrote the court's other ruling, another 5-to-4 decision, overturning a nearly century-old antitrust rule of law. At issue was whether manufacturers can set a minimum price that retailers must charge for their products.

Since 1911, the court has said such minimum price fixing is an automatic violation of the nation's antitrust laws. But yesterday the court overruled that decision and said such minimum agreements are to be analyzed on a case-by-case basis and are legal if they promote competition.

The court majority said the new rule would enable retailers to charge more for better customer service without fear of being undercut by discounters.

Writing for the dissenters, Justice Breyer echoed his refrain from the schools case: Whatever happened to the notion of respecting long-established legal precedent? Nothing has changed in the American economy since 1911 that would support the majority's conclusion, he contended. Indeed, concentration in retailing has increased, not decreased, since then. The only safe prediction to make about yesterday's ruling, lamented Breyer, is that it will likely raise the price of goods at retail.

Nina Totenberg, NPR News, Washington.

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