There’s a reason for that smug smile I have on my face. I just read the Supreme Court’s decision in the forced integration cases, and I’m feeling like Carnac once again. Earlier this week, I told you:
The smart money says that it will be 5-4 rejecting the race-based assignment plans, with Chief Justice Roberts writing for the majority. Anything else will come as a shock. The interesting thing will be to see how the majority characterizes the holding of Brown v. Board of Education.
In my post from December 2006, written the day of the oral arguments in this case, I described my view of these cases — and of the proper way of viewing the holding in Brown — as follows:
[N]obody is saying that government may once again institute forced segregation of schools as a matter of state policy. The issue is whether government may institute forced integration of schools as a matter of state policy. If not done to remedy a specific and demonstrated past history of discrimination, this would arguably violate the very idea behind Brown: that the state may not assign pupils to different schools on the basis of race, even if the schools are arguably similar in quality.
Now let’s read from Chief Justice Roberts’s opinion, paying special attention to the parts I have bolded (and comparing them to the bolded quote immediately above):
As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p.7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?
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.
That sounds a lot like saying: “If not done to remedy a specific and demonstrated past history of discrimination, [forced integration] would arguably violate the very idea behind Brown: that the state may not assign pupils to different schools on the basis of race, even if the schools are arguably similar in quality.”
So, as I say in the post title, I’m available if a Supreme Court spot opens up. Only problem is, that’s unlikely to happen any time soon. Do you think Hillary will consider appointing me?
P.P.S. I should make clear that the quoted language is from a portion of the opinion that is only a plurality. The commendable principles articulated above do not enjoy the support of the eternally squishy Anthony Kennedy.