Executive Summary

The Seattle District case, decided 28 June by the Supreme Court, is unique in the way that the 5 Justice majority and the 4 Justice dissent attack each other for abusing the Court’s prior cases, essentially of intellectual dishonesty. The majority holds that assigning children to a school solely on the basis of their race, offends the Constitution. The minority would hold that school administrations have the right to do that, in the interests of “diversity.”

Both sides claim to be in the tradition of the classic decision, Brown v. Board of Education, and accuses the other side of betraying that decision.

In my judgment as a 33-year practitioner in the US Supreme Court, the majority is being faithful to Brown, and the dissent is not. Lawyers can go through the cases cited by each side to determine one by one which side is honest, and which is not.

Analysis of Decision

On 28 June, 2007, the Supreme Court decided Parents Involved in Community Schools v. Seattle School District 1. Two cases were consolidated here. In Seattle, the lead Plaintiffs were the parents of a child with both dyslexia and ADD. Parents and teachers had agreed that he belonged in a particular school with a particular program. But he was a member of the wrong race to be admitted to that school under Seattle’s racial balance program.

The other case came from Missouri, where the lead Plaintiffs were parents of a student about to enter kindergarten. He was refused admission to two different schools a mile from his home, because he was of the wrong race, under the Jefferson County’s racial balance program. In Missouri the schools had been under a prior judicial order because of prior segregation, since resolved and dismissed. In Seattle, there was no such prior history. That difference had nothing to do with the outcome of the case.

Both racial programs had been ruled by lower courts to be constitutional, and in accord with state discrimination statutes, when the Supreme Court took the cases. The Opinion was written by Chief Justice Roberts, on behalf of Justices Scalia, Thomas, and Alito.

As the Opinion says, the schools relied on the goal of “diversity” in the student body, which was upheld in the Gutter decision involving the Michigan Law School, the most recent case upholding race as one factor, but not the single and overwhelming factor, in admissions. As the Court said, “the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group.”

Here’s the heart of the Opinion: “The principle that racial balancing is not permitted is one of substance, not semantics.”

The Opinion deals harshly, in an unusual way, with the impassioned Dissent by Justice Breyer “it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision.”

Both sides in this case claim the heritage of the giant of desegregation cases, Brown v. Board of Education, in 1953. The Opinion notes that the Plaintiffs in that case said that the 14th Amendment “prevents states from according differential treatment to American children on the basis of their color or race.”

There is a brief Concurrence by Justice Thomas. Beyond agreeing with the Opinion by the Chief Justice, he takes Justice Breyer’s Dissent to school by explaining that there is neither a threat nor a chance of “resegregation” in either Seattle or Louisville. As he writes, the Dissent “ignores the meaning of the word segregation.”

Justice Thomas also takes the Dissent to the woodshed for abusing and misstating the prior, desegregation cases of the Court.

Justice Kennedy cast the deciding vote in this 5-4 decision, so his 18-page Concurrence will be parsed for years to come to determine the boundaries of what actions are permissible or not by local school boards concerning issues related to race. He begins by stating that “diversity,” is, in and of itself, a legitimate goal for school systems.

Justice Kennedy concludes that neither of the school systems are “narrowly tailored” to meet the stated purposes, and that neither meet the well-established “strict scrutiny” which the Court has regularly applied in cases involving racial identity and the law. Justice Kennedy wrote that schools could use “mechanisms” that take race into account, but not one that “tells each student he or she is to be defined by race.”

Finally, Justice Kennedy condemns the Dissents for misusing the Court’s prior decisions, and thereby attacking the basic principle of stare decisis. He refers to what the Dissents seek to do with prior cases as “simply baffling.”

Justice Stevens filed a separate and short Dissent that begins with these words, “I join Justice Breyer’s eloquent and unanswerable dissent in its entirety.” It ends with this attempt to pull rank on all the other Justices, “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” In between, it accuses the Court of “overruling” a prior decision in which it issued no Opinion, but just dismissed an appeal as “not presenting a federal question.”

Justice Breyer filed the main Dissent, joined by Justices Stevens, Souter and Ginsburg. The barbs in the Dissent start early. He writes that the Opinion “distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools….”

(“Segregation,” of course, means separation of races by force of law. No one in either of these cases even pretended or argued that there was any segregation present or threatened in either of these cases.)

This Dissent displays the reason for its logic when it discusses the history of “the number of black children attending a school where minority children constituted more than half of the school.” While this measure had declined up to 1980, it then “reversed.” In short, these Justices considered assigning students by race to be acceptable to make up for aspects of housing that they disapproved of.

In casting about for a lower court decision that accepted the standards this Dissent preferred, they found one from the Ninth Circuit that “rejected a federal constitutional challenge to a school district’s use of mandatory faculty transfers to ensure that each school’s faculty makeup would fall within 10% of the districtwide racial composition.” The only thing that the Dissent found in Supreme Court decisions to support its conclusion was in prior Dissents, filed by the Justices joining in this Dissent.

Justice Breyer claims that, “This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply.” However, the cases arose for the precise reason that students who wanted a program that matched his educational needs (Seattle), or a kindergarten near his home (Louisville). These were services which these children and their parents wanted but they were in short supply and went to someone else on a racial basis.

The Dissent gets remarkably personal when Justice Breyer writes, “For his part, Justice Thomas faults my citation of various studies supporting the view that school districts can find compelling educational and civic interests in integrating their public schools.” Whatever any such studies say has nothing to do with the meaning of the Constitution, however.

These four Justices follow the philosophy that if th
e need is great enough, the Constitution should not stand in the way of the “preferred” outcome in any case. The press refers to the majority and minority in this case as “conservatives” versus “liberals.” These labels are false. The division is between Justices who believe the Constitution should be obeyed, and those who think the Constitution should not stand in the way of their idea of progress.