SCOTUS Strikes Down Race Discrimination as Cure for Race Discrimination

The Supreme Court, in yet another 5-4 ruling, has decided that discriminating on the basis of race is not a Constitutionally permissible solution to race discrimination. Lyle Denniston:

Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote. On the two school plans, the majority found that the districts have “failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts.”

The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Answering that, Justice John Paul Stevens said in dissent that there was a “cruel irony” in making that claim, because it involved a rewriting of the history “of one of this Court’s most important decisions.” Stevens noted that he joined the Court in 1975, and asserted that “no member of the Court” at that time “would have agreed with today’s decision.”

Whether true or not (and I suspect the latter, given William Rehnquist’s presence on the Court) the passage of 32 years presumably impacts permissible policy. The 14th Amendment rather clearly enjoins discrimination on the basis of race. In various desegregation cases in the 1960s and 1970s, though, the Court carved out what they deemed reasonable exceptions to that policy so long as they were aimed at remedying past discrimination.

Increasingly, though, the Court has applied strict scrutiny to government-sponsored discrimination. In the present cases, the districts were trying to force integration of schools to remedy benign neighborhood settlement patterns. That’s certainly a different thing than trying to remedy decades of state-sanctioned segregation.

Stevens does have a point though. While virtually everyone now agrees with the public policy result, Brown was decided on a peculiar basis. Rather than simply saying Plessy v. Ferguson was wrongly decided in 1896 and was contrary to the plain meaning of the 14th Amendment, the Court instead relied on some social science data showing that kids discriminated against on the basis of race were internally stigmatized and permanently hampered economically by a sense of isolation and limitation. If that rationale still holds as Constitutional doctrine rather than mere dicta, then it’s difficult to see why school districts aren’t within their rights to forcibly integrate students.

FILED UNDER: Law and the Courts, Race and Politics, Supreme Court, US Constitution, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Bithead says:

    interesting, the difference a few years can make..

    It was just a few years ago that we were dealing with Grutter v. Bollinger, and Bakke, wherein the court essentially ruled that race SHOULD be a factor, when dealing with admissions… and those, James, were not 32 years ago, but seven years ago.

    …..I had just started BitsBlog when Grutter came down… My gosh… 7 years? Oh, well. Anyway;

    The cognitive dissonance inherent in Grutter was perhaps fairly well laid out in my objections at the time. As in this case, the key argument it seems to me was whether are not there was a compelling interest of maintaining a “diverse student body”, purely by means of bean counting. I said then…

    Such an interest is by no means a constitutional argument, but rather, a political argument… and a short-term political argument at that. Even the key vote in this case, Justice Sandra Day O’Connor’s declares, “…we expect that 25 years from now, the use of racial preferences will no longer be necessary.”

    One presumes that at such a point, the court will again be asked to rule, and will reverse its decision. For the sake of discussion, and examination, let’s assume the constitution remains fairly well static between now and then, as it has for much of it’s 200 plus years of life. If the need, much less the remedy, is a constitutional issue, how could such measures EVER NOT be needed? Unless the constitution itself changes, something doesn’t change status from constitutional to
    unconstitutional and back again. These race-based initiatives are both illegal and unconstitutional. So to effect this ruling, we must ignore the Constitution.

    So, the court figures maybe in 25 years (…. Or, maybe not… Justice Ginsburg reminds us we can’t accept a guarantee of the timing, here…) these measures won’t be needed anymore. Did we simply put the Constitution on “hold” for 25 years or more, until someone decides to start enforcing the Constitution? If so, what’s to guarantee we won’t disregard it again, at some need or other, and for less popular reasons?

    (aside: Please note that I’m arguing, 7 years ago, as I did yesterday, from the standpoint of exsting definitions… in this case, the Constitution.)

    I bring all this up, because it appears to me at first glance of the ruling, that the logic employed in this ruling flies directly in the face of Grutter and, in turn, Bakke. O wonder, then, if we’ll see an overturning of these earlier rulings.

    I would take the comments of Mr. Justice Stevens to confirm your suggesion that the court has been steadily reversing its decisions as you point out. I see clearly in this ruling, the logic a comment that I made the day Grutter was handed down:

    There is a major difference between mandating what we’ll call “RACIAL Diversity” and encouraging “TRUE Diversity”. “Racial diversity” simply means we have a lot of different races represented in a given sector of society. “True diversity” means that we have a lot of different styles of thinking, points of view, politics, ideation, etc. regardless of the race of each individual involved.

    As such, I submit there is no compelling state or societal interest in mandating Racial Diversity per se’, in a racially neutral society, which we are supposedly striving to be.

    Make no mistake from my comments; Diversity of thought… of ideas, or opinions is a fine goal… to be lauded and it constitutes the largest interest of the state. It should be pursued. Apparently that’s the goal being sought by the Court, when it seeks to force diversity by forcing racial diversity. I must give the court credit for keeping that goal in mind.

    However, can the pursuit of that goal get tangled when we try to get there through mandated racial diversity? Can it get wrapped up in stereotypical nonsense? It appears so. Consider the comments of Justice Anthony Kennedy, who in his dissent, cited the testimony of a former director of admissions at the UM Law School that when the question came up about whether Cubans should be counted as Hispanics, one professor objected on the grounds that Cubans were Republicans. Do you think Racial Equality was foremost on THAT gent’s mind, or was it pure, liberal-biased, stereotyping politics, base on race alone?

    The Court in Bollinger seems to be working under the idea that they’ll get us to True Diversity, through mandating Racial Diversity. This is a flawed, possibly fatal path to the stated goals of True Diversity and our being a racially neutral society. Following this path in fact will reverse much of the good work done already toward the essential goal of making us a less race conscious, and more race-neutral nation, as the Constitution demands. Even the court itself, in Justice O’Conner’s writings, tacitly admits this.

    This court-directed pursuit of True Diversity by means of counting the color of each nose going by the admissions gate in our schools, (and one presumes, other sectors of our society, as well) is based on the revolting assumption that a person’s race is in total control of their thought processes, opinions, and their ideas. Not only will I point out that such stereotyping is in fact racism, I say it is racism of a most ugly kind. It is one that should not be tolerated under ANY condition, least of which under the guise of ‘diversity’.

    As a final swipe to the status quo, I will quote Mr. Justice Thomas who quipped:

    “Do we have any sense that the traditionally black colleges will now start admitting more whites for the sake of diversity? “

    The logic for the overturning of those earlier rulings I cite, would seem to have been laid in this ruling. You can imagine the smile on my face, that the logic in this ruling, is precisely the logic I laid out seven years ago. The only question remaining in my mind about all of this, is whether or not the technical language of this ruling will overturn such as Bakke and Grutter, given that those are in response to government mandated “diversity” programs, and this one, was supposedly “voluntary”.

    James I’m sorry for the length of this one, but it’s nice to be vindicated… Even if it took most of a decade to get there.

  2. Bithead says:

    I stand corrected on the time factor…. Grutter was June of ’03.

  3. James Joyner says:

    Well, Grutter was decided 5-4 O’Connor has been replaced with Alito, so that presumably has something to do with it.

    While I thought Grutter was wrongly decided [see my posts here], there is some difference in considering race along with other criteria in making a subjective decision for college admissions and busing kids out of their communities to achieve integration.

  4. Bithead says:

    No argument on any of that. After all, there are very few comparisons that are equal on all points. The point I’m making, however, is not the specifics and the logistics involved, but the logic behind implementing them.

    Your point about Alioto, is well taken. Perhaps what we are witness to, here is the best argument to come along in a lot of years, of the difference that a different President making Supreme court appointments, can make.

    And granted that I am playing kindergarten Supreme Court observer, here, but it also points vividly at the fallibility of the high court. After all, these rulings, and these philosophies on which these rulings are based, which so apparently are a direct opposites, cannot both be constitutional. It is a logical impossibility.

    Seems to me and one of my classes, years ago, we had a similar discussion about Dred Scott, and whether not that ruling was, in fact, constitutional.

  5. James Joyner says:

    After all, these rulings, and these philosophies on which these rulings are based, which so apparently are a direct opposites, cannot both be constitutional. It is a logical impossibility.

    Yup. Dodd and I talked about that on OTB Radio Monday, in fact.

  6. Bandit says:

    Stevens says that the court should leave policy decisions to the legislative branch – at least when he disagrees with them