Blog and Media Roundup
Reaction to Justice Thomas' concurrence
Reaction to Justice Breyer's dissent
Reaction to C.J. Roberts' opinion
Reaction to Justice Stevens' dissent
Reaction to Justice Kennedy's controlling concurrence
Opening thoughts (Parts I and II)]
Roberts swung for the fences on this one. I cynically suggested in my first post that Roberts saw this case as a way to secure his legacy, and his opinion seems to bear that prediction out.
The first part of the opinion is reasonably narrow, articulating specific problems with the application of the Seattle and Louisville plans (this was the part of the opinion that Kennedy joined). In much of this, my reaction is similar to my reaction to the analogous portions of Kennedy's opinion. It's the latter half (Part IV and portions of Part III), where Kennedy's vote was absent, that Roberts really unleashes the artillery.
Much of my disagreement with the Chief Justice stems from a material disagreement as to whether segregation that is not directly traceable to de jure government action should be at all actionable, as well as whether the distinction between "racial integration", "diversity", and "balancing". Here's part of Roberts' discussion of this issue:
Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that "[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class." Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O'Connor, J., dissenting); internal quotation marks omitted). Allowing racial balancing as a compelling end in itself would "effectively assur[e] that race will always be relevant in American life, and that the 'ultimate goal' of 'eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race will never be achieved."
The Ninth Circuit below stated that it "share[d] in the hope" expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII, 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt, 517 U. S. 899, 909-–910 (1996) ("[A]n effort to alleviate the effects of societal discrimination is not a compelling interest"); Croson, supra, at 498–-499; Wygant, 476 U. S., at 276
(plurality opinion) ("Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy"); id., at 288 (O'Connor, J., concurring in part and concurring in judgment) ("[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 principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from "patently unconstitutional" to a compelling state interest simply by relabeling it "racial diversity." While the school districts use various verbal formulations to describe the interest they seek to promote--racial diversity, avoidance of racial isolation, racial integration--they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05-–908, at 257a ("Q. What's your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that"); id., at 228a-229a ("I don't think we've ever sat down and said, 'Define racially concentrated school exactly on point in quantitative terms.' I don't think we've ever had that conversation"); Tr. in McFarland I, at 1–90 (Dec. 8, 2003) ("Q. How does the Jefferson County School Board define diversity . . . ?" "A. Well, we want to have the schools that make up the percentage of students of the population").
Jefferson County phrases its interest as "racial integration", but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 ("[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is . . . infirm as a matter of law" (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 24 (1971) ("The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole"), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system.
The en banc Ninth Circuit declared that "when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution." Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled "racial diversity" or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. (22-25)
Roberts' cavalier dismissal of the entire concept of "diversity" is troubling, as is his (mis-)usage of Milliken and Swann--which held that mandatory desegregation plans cannot demand a particular racial balance--to argue that voluntary plans can't use those metrics. What the courts can order and what the legislature can pursue are not the same thing, and Roberts knows better than to conflate them.
I'd also note that Roberts simply asserts, without argument, that race-conscious integration plans are at "cross-purposes" with getting students to view their peers as individuals instead of members of a group. However intuitive that proposition may seem in the abstract, virtually all the empirical evidence points in the other direction. "Facts are stubborn things," as John Adams once said, and here they pose an insurmountable barrier to Roberts' substitution of rhetoric for reason.
Indeed, for all his complaints of how the dissent is engaging in hyperbole (he calls Breyer's rhetoric "cataclysmic"), there is a fair amount of hysteria in Chief Justice Roberts opinion. Twice, he refers to the plans forwarded by Seattle and Louisville as "extreme" (27, 38). But he gives very little in the way of analysis as to what makes them extreme--especially compared to the radical claim that race-based desegregation and race-based segregation are morally identical. Much of the arguments he does give are focused around the need of the constitution to protect individuals, not groups. But I am individually raced as White, and every Black student is individually raced as Black. The existence and perpetuation of race-based stereotyping and hierarchy effects all of us as individuals, and the Chief Justice shows little sensitivity or inclination towards dealing with this problem. Arguing that any use of race is an exercise in group-protection would force us to jettison not just "racial diversity" but "racial prejudice." Both would take an individualized characteristic and tag it to a group identity. Why should we look at prejudice on account of a group membership differently than prejudice on account of any other (more idiosyncratic) prejudice? Does even talking about racial discrimination "demean the dignity and worth of a person" (39, quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000))? Roberts opinion is not just irreconcilable with racial progressivism, it's irreconcilable with the idea of doing anything about anything race-related, including racism. If the thought, motives, and effects are all irrelevant (see 35), we are left with nothing more than legally-compelled amnesia. For my part, I think that we are mature and rational enough individuals that we can hear the word "race" without crawling under the bed in terror. As Ian F. Haney Lopez put it, "[t]o acknowledge race is to leave open the possibility--indeed the certainty--that this acknowledgment will at times be turned to racism's service." However, the fact that discussions of race can enable racism "cannot provide the reason for refusing to examine as honestly as possible the nature of race." [Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 19 (1994)]. Courage, not fear, is the order of the day.
Finally, as Justice Stevens indicated, the most offensive portion of Roberts' opinion comes at the end, where he tries to write his opinion as the successor to Brown.
Before Brown, schoolchildren 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. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way "to achieve a system of determining admission to the public schools on a nonracial basis," Brown II, 349 U. S., at 300–-301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
The Chief Justice and I, respectively, have very different views about what Brown was about. No history class, no lecture, no textbook ever characterized the evil of segregation as being the usage of "Black" and "White" in the school statutes. The harm of segregation was that schools were segregated. Roberts last sentence is meant to echo William Van Alstyne's famous line, and he "wrote for the quote", so to speak. But with due respect, it is sick and twisted to refer to race-conscious integration as "discrimination." Before Brown, students were told that Black and White students ought not, could not, and would not go to school together. Over 60 years later, we our running a school system in which Black and White students still do not attend school side-by-side, and the opinion of Chief Justice Roberts says that schools ought not fix that. This is nothing more than a reversion to Plessy under new language (the Plessy Court, I'd note, strenuously denied that its policy of segregation was anything but neutral and fair to all parties). I would urge the Chief Justice to re-evaluate the content of Brown, and adopt a new slogan that is consonant with the way every school-child understands it: "The way to stop segregation on the basis of race is to stop segregating schools on the basis of race." So long as the schools remain segregated, the promise of Brown remains unfulfilled--and too many people have staked their lives on that promise to let it be corrupted by historical revisionism now.