The Seattle and Louisville school cases: There is no other way

In Parents Involved in Community Schools v. Seattle School District No. 1, (1) Supreme Court addressed two student assignment plans that relied upon race to determine which public schools certain children could attend. The Seattle suit challenged high school assignments; Louisville action, elementary and middle school placements. The Court characterized each plan as voluntary rather than remedial and held that each violated Fourteenth Amendment's Equal Protection Clause. That judgment required Justice Kennedy's crucial fifth vote, and his concurring opinion explicitly declined to rule out achievement of diversity as a compelling educational interest or to eliminate utilization of all race-conscious means. (2) Nonetheless, Parents Involved goes a considerable way toward affirming that our common citizenship and shared humanity transcend differences of ethnicity and race and that a Republic riddled with race-conscious decisionmaking is not what America aspires to be. Five Justices contributed opinions in this case, and debate was as impassioned as one would expect a debate on race, schools, and country's past and future course to be. In general, these high stakes elicited a high quality of judicial discourse. Yet this battle brought no peace or even truce, and indeed left only impression that Court's own decisions on use of race in education remain in tension (3) and that profound differences that persist within Court and throughout country on these questions will be argued just as heatedly another day. I propose to examine five opinions in three groups: first Roberts court and plurality opinion and Thomas concurrence; next Kennedy opinion concurring in part and concurring in judgment; and then Stevens and Breyer dissents. As a judge of an inferior court, I approach my task with deepest respect for Court and its members and in hope that candor necessary for worthwhile commentary is but a mark of appreciation for conscientious manner in which that fine institution goes about its work. I. The Roberts and Thomas Opinions The Chief Justice appropriately took lead opinion for himself. The tradition of Chief Justices writing on race and education, while hardly uniform, goes back to Brown (4) (Earl Warren) and Swann (5) (Warren Burger). Yet this case, unlike Brown and Swann, was not unanimous. In fact, 5-4 decision, with crucial portions of lead opinion not supported a majority, was about as far from unanimity as a court could be. And this case, unlike Brown and Swann, did not vindicate efforts of parties seeking to achieve a greater degree of racial integration in our public schools. (6) For these and other reasons, holding Seattle and Louisville plans invalid portends a ferocious onslaught. It will be said that very Court that led fight for school desegregation turned history on its head; that Court's decision served to perpetuate resegregative trends in public education already underway; that Court allowed fact of housing segregation to foreclose educational opportunities as well; that Court forsook not only its traditions but also its respect for precedent; that a Court majority ostensibly opposed to activism was all too ready to practice it; and, most seriously, that Court abandoned African Americans in their long struggle to achieve true equality in these United States. Justice Stevens expressed his firm conviction that no Member of Court that [he] joined in 1975 would have agreed with [the] decision. (7) Justice Breyer predicted decision would be one that the Court and Nation will come to regret. (8) The New York Times warned that there should be no mistaking just how radical this decision is. (9) And in Washington Post, Eugene Robinson insisted that society's quest for fairness and equality could proceed only by working around those dour men in black robes on Capitol Hill. …