Louisville, like many American cities, long maintained a system of explicit racial segregation in its schools. For a long time after that system was ended, Louisville was under a court-ordered desegregation plan to remedy the effects of that official, state-sponsored (or de jure) segregation. The plan ended in 2000 with the federal court pronouncing its work remedying that de jure segregation completed.
But local officials were concerned about the lingering private (or de facto) segregation in Louisville, and so passed a plan to ensure that schools remained somewhat racially integrated. The plan mandated that no school maintain too high or too low a black population, and ensured that no school had too high or too low a “other” population, which included whites, Asians, Latinos, and any “other” category of people.
A single African American mother endeavored to send her child to a magnet school, but was turned away because the student would upset the “racial balance.” She began the lawsuit, which was later taken over by Crystal Meredith. Meredith is another single mother, whose child was not allowed to attend the neighborhood school around the corner from his house, but instead was bussed to a lower-performing school a long distance away, solely because he would upset the racial balance of the neighborhood school, which had empty seats.
The Supreme Court said Thursday that Louisville could not use such crude implements to assign students to schools and to fight de facto segregation. It struck down the Louisville system, as well as a more egregious system designed by Seattle that did not endeavor to integrate all the schools, and indeed specifically provided for a nearly all black “African American Academy.”
The opinions themselves are heavily fractured, and total 185 pages in length. Chief Justice Roberts’ main opinion (joined by Justices Thomas, Scalia, and Alito) takes head-on the notion that achieving diversity in the schools alone is a compelling interest. Justice Breyer’s dissent (joined by Justices Stevens, Souter, and Ginsburg, and described aptly by Stuart Taylor, Jr., as “apocalyptic” in tone, accused the Court of all but overruling Brown. Separate opinions by Justices Stevens and Thomas provided unique insights into those Justices’ views.
But the controlling opinion was written by Justice Kennedy. And Justice Kennedy made very clear that the Roberts Court will be more conservative than the Rehnquist Court. He accepted the notion that achieving diversity could be a compelling interest in certain circumstances. Kennedy could not, however, ultimately accept a program that used race as the ultimate tiebreaker in deciding where a child ends up, and voted to strike down the programs as insufficiently tailored to the goal of diversity. Specially, Justice Kennedy believed that the schools had failed to explore less race-laden activities.
It’s unclear exactly how far Justice Kennedy will go in striking down state-sponsored racial preferences. He dissented outright in Grutter, but seems to have accepted its rationale, at least in certain circumstances. While it does not appear that he wholly accepts Chief Justice Roberts’s admonition that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” it is clear that he is closer to that position than was Justice O’Connor. Future cases will determine just how close he is to whom.
This is likely only the beginning of this fight. Ted Gordon, the sole practitioner who took the case and argued it, reports that while he has already achieved what he set out to do “one-hundred percent,” the school board has indicated that it does not plan to adhere to the decision for the upcoming term. In the long-run, it will likely seek to change the program as little as possible, probably requiring yet another court battle, which will be guided by Justice Kennedy’s opinion. But for now, Crystal Meredith has reason to celebrate.
I remember at Boy’s State my senior year of high school, a man told me that once, when he read the Bill of Rights, he actually wept. Boy’s State is, of course, run by the American Legion and the man, of course, had long military service. At the time, I was seventeen years old, had no intention of serving in the military, and thought the observation was quite odd, to put it lightly.
As I’ve grown older, I’ve come to understand what touched this serviceman’s heart, even without what would have been a great benefit of sharing in his service to country myself. He’d been reminded that what he fought for was a set of ideals that we far too often take for granted in this country. Among those is the ideal that we are all equal before the law.
This case is about that ideal at levels other than the obvious, controversial level. This is a case where a solo practitioner who had never before argued at the Supreme Court, a pair of single mothers, and a group of concerned parents were given the opportunity to stand up to the state (okay, the Commonwealth in Kentucky’s case) and a wide array of interest groups, and take the case all the way to the Supreme Court, get a fair hearing, and win. It really is an amazing thing when you stop to think about it, or look even momentarily around the world and think how this would have been handled in other countries.
This term has been the most contentious term I’ve witnessed in recent memory, in no small part because a political philosophy that has only tenuously been holding on to the Court for a while now has suffered a series of serious setbacks. But at the end of this Term it is worthwhile to look back, take some perspective, and revel in what a wonderful country we live in that affords us the opportunity to bring these cases before judges who almost always try to be impartial, fight vociferously about the outcome amongst ourselves, and then sit next to each other at a baseball game and enjoy a beer together.
Only in America.