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Brown, the sequel

Court invokes '54 decision to limit racial assignments

Published June 29, 2007 at midnight

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'When it comes to using race to assign children to schools, history will be heard." So wrote Chief Justice John Roberts Jr., invoking the historic 1954 school desegregation case Brown v. Board of Education in support of the U.S. Supreme Court's ruling Thursday that invalidated two districts' policies that assigned some children to specific schools based solely on their race.

In Seattle, students were separated into "white" and "non-white" categories, and permission to enroll in certain high schools could be denied if enrollment of each group varied too far from the district's overall percentage of each group. In Louisville, Ky., the separation was between "black" and "other," and children could be denied permission to transfer in or out of a school if the transfer would result in either too few (less than 15 percent) or too many (more than 50 percent) black students in a school.

Roberts points out that in the term following Brown, the court said that full compliance with that ruling "required school districts to achieve a system of determining admission to the public schools on a nonracial basis" (his emphasis). "What do the racial classifications do in these cases," Roberts asked, "if not determine admission to a public school on a racial basis?"

The opinion is on the money. It explicitly states that these plans do not meet the standards established a few years ago in Grutter v. Bollinger, which permitted the University of Michigan Law School to continue considering race as one factor in admissions only as part of a "highly individualized, holistic review."

Moreover, the justification given by then-Justice Sandra Day O'Connor in Grutter spoke specifically to the special circumstances of higher education, so that decision does not govern the cases decided Thursday. "In the present cases, by contrast," Roberts wrote, "race is not considered as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas, and viewpoints; race, for some students, is determinative standing alone."

However, that these cases got as far as they did indicates the mischief caused by O'Connor's opinion. Both of the appeals courts that ruled in favor of the districts' policies - the Ninth Circuit for Seattle, and the Sixth District for Louisville - relied on it.

In addition, Justice Anthony Kennedy's separate opinion, which provided the majority's fifth vote for the ruling, seems to suggest that more subtle race-conscious plans might yet be found acceptable. "If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students," Kennedy wrote, "they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race."

That's not what these districts' policies do, however. As Roberts put it, "In design and operation, the plans are directed only to racial balance, pure and simple, an objective this court has repeatedly condemned as illegitimate."

And he concluded, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

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