A 5 year-old boy was not allowed to attend his neighborhood school because of his race. And it was 2002, not 1954. The most remarkable thing about last week’s Supreme Court decision was that it had to be decided by the Court at all. Contrary to the Constitutional principle of equal rights under the law, the Jefferson County Kentucky Board of Education, a federal district court and the Sixth Circuit Court of Appeals all agreed that Joshua McDonald should be compelled to go to a school across town despite the fact that there were open seats at his neighborhood school simply to maintain racial quotas in Louisville’s decades-old busing plan.
The Roberts Court overturned them all. From the five justices who comprised the majority in the Louisville case, we got a simple lesson in constitutional law. And from Justice Clarence Thomas, we got a more valuable lesson in history.
The dissenters to Thursday’s decision, in what is being called the “Parents” case, made a familiar argument: that we should give deference to the local officials who developed these school admission plans, that these local officials, not the constitution or the courts, better reflect “local experience.” The reason that argument sounds familiar is - as Justice Thomas’ little-publicized concurring opinion shows - is the same argument made by the segregationists in the 1952 landmark case of Brown v. Board of Education.
Justice Thomas points to the argument of the dissenters in “Parents” that the plans of the school boards should be upheld because “[e]ach plan embodies the results of local experience and community consultation.” and that “weight [must be given] to a local school board's knowledge, expertise, and concerns.” In Brown the segregationists agued that, “We advocate only a concept of constitutional law that permits determinations of state and local policy to be made on state and local levels. We defend only the validity of the statute that enables the Topeka Board of Education to determine its own course.” This is also apparently the opinion of Hillary Clinton, who said, in reaction to the Court’s decision in “Parents,” that the decision infringed on the “right[s] of local communities.”
Justice Thomas repeats the rallying cries of the lawyers who litigated and won Brown, “that the Constitution is color blind is our dedicated belief,” and “the Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone.” Yet Harry Reid calls Thursday’s decision “a step backwards” and says it basically overturns Brown. Barack Obama calls it “a serious obstacle in the way of achieving the vision of America” first outlined in Brown. Is Obama’s vision that our citizens be labeled as “white” or “non-white” from the moment they register for school and be treated accordingly?
What was true in 1952 is equally true today: “Under our Constitution, the government may not make distinctions on the basis of race.” Notwithstanding the media’s attempt to paint Thursday’s decision as a politically-based departure from the precedent of the Court, the long line of cases since Brown has clearly established that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” And were Justice O’Connor still on the Court, the decision would likely have been the same.
The media, ignoring (and probably ignorant of) the many legal and factual distinctions between the cases, points to the last major discussion of this topic by the Court, in a case dealing with higher education, and a diversity plan very different in it content and application. In that case, known as Grutter in which Justice O’Connor wrote the majority opinion, the Court stated clearly that, “outright racial balancing” is “patently unconstitutional.” In another case, Justice O’Connor said: “[A] governmental agency's interest in remedying ‘societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster”.
The position of the dissenters to Thursday’s decision, as pointed out by Chief Justice Roberts, is simply that the end justifies the means. The dissenters argue that though “there is a cost in applying ‘a state-mandated racial label,’” the cost is worth paying. In effect, the political end justifies the violating the Constitutional principle. Which is just what you can expect from liberal judicial activists.
It’s worth noting that the challenge to the Louisville school board wasn’t mounted by the Vast Right Wing Conspiracy, funding a large, high paid law firm. No, the challenge was brought on Joshua’s behalf by Teddy B. Gordon, a solo-practitioner in Louisville, himself a long time Democrat and liberal (and - full disclosure - my wife’s uncle) who had argued many of Kentucky’s major desegregation cases. Unlike most liberals, however, Ted Gordon recognized the hypocrisy and inconsistency of what the school board was doing, and had the guts and determination to do something about it.
Putting all the legal niceties aside, Chief Justice Roberts said it plainly enough:
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This is the precedent of Brown v. Board of Education.
