A Supreme Court Conversation

A Mistake of Historic Proportions
An email conversation about the news of the day.
June 27 2007 7:48 PM

A Supreme Court Conversation

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Dear Dahlia,
 
Before answering your interesting questions from this morning, I want to jump to the Louisville and Seattle cases that we are reasonably certain will be announced this Thursday morning. It's hard to think about much else because I fear the court is about to make a mistake of historic proportions by invalidating school assignment plans that take account of race to lessen the amount of racial segregation in the schools. The justices are now down to their final day, after struggling with their opinions since these cases were argued last December. Most observers of those arguments agreed with Linda Greenhouse's assessment that "the only question was how far the court would go in ruling such plans unconstitutional."  

A majority of the justices seem to believe that striking down these plans would relocate school assignments to some race-neutral Garden of Eden, a wondrous, mythical place in which race plays no role in which public schools pupils attend. That assumption reflects an enormous blind spot. These plans at issue use race to mitigate the effects of racial separation in residential housing. They thus ultimately reduce the role of race in pupil assignments. For the justices to assume that race comes into play for the first time when these school boards attempt to lessen racial separation is to make an assumption tragically blind to the role of race in America.

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For simplicity, I will focus on Louisville. The plan is designed to facilitate the goal of racially integrated schools. The basic system is to assign students to the school in that student's residential area with pupils given some freedom to choose to attend other schools in their area. The Jefferson County school district is about 65 percent white and 35 percent nonwhite. The county does not require that each school exactly reflect that roughly one-third proportion of nonwhite pupils in its school system, but it does want each school to have a black student enrollment of at least 15 percent and to avoid schools that are more than 50 percent black. Race becomes a factor (and will result in denial of assignment to a particular school) only when a pupil applies for a school where his or her admission would drop the minority percentage below 15 percent or raise it to above 50 percent. The county hopes that by avoiding having some schools that are overwhelmingly white and others that are majority nonwhite, it will encourage parents to keep their children in the public school system and provide education in a racially integrated setting. 

There are many ways to argue for the validity of this use of race. I want to start with the simplest, most direct, most "conservative," if you will. The simple, indisputable fact that should be placed on a billboard across from the Supreme Court is this: Jefferson County housing is substantially segregated along racial lines.  The assignment of all Jefferson County public-school students to "neighborhood schools" would result in a substantial number of racially segregated schools.

Unless school officials mitigate the absolutely certain segregative effects of a residential assignment system by some form of amelioration, they will be knowingly reproducing that racial separation in the schools. Former Justice Lewis Powell of Virginia—long a school board member before going on the court—understood this. He wrote in the 1973 Denver case

… the familiar root cause of segregated schools in all the biracial metropolitan areas of our country is essentially the same: one of segregated residential and migratory patterns the impact of which on the racial composition of the schools was often perpetuated and rarely ameliorated by action of public school authorities. This is a national, not a southern, phenomenon. And it is largely unrelated to whether a particular State had or did not have segregative school laws.

One fundamental failing of those who would invalidate Louisville's efforts is the failure to see that voiding Louisville's benign use of race will leave in place a pupil assignment system heavily determined by racial decisions. The schools that will tend to become all-black won't be that way as a matter of accident, chance, or purely private choice.  They will be that way because federal, state, and local government have all played roles in facilitating the segregation of housing in this country. And school systems that choose residential assignment systems are aware of how that choice produces racially separate schools. Even if a school system is not required to take steps to ameliorate that separation (as Lewis Powell suggested), surely it is permitted to do so.

After dinner tonight, I'll write more to let you know, my young Canadian friend, what Brown v. Board meant for white and black southerners who lived through the Civil Rights Era. It will give you something to think about while you are waiting for the decisions to come down.

One last item. Dahlia, we seem to have had a substantial amount of disagreement this week.  That happy conflict is likely to end when the Louisville and Seattle school cases are announced. We may find ourselves of one mind. As you and I agreed when we made our plans for this week's Breakfast Table, it would be good for Slate readers to hear about the use of race in school allocation from someone who is likely to take a different view. I'm pleased that our first choice, Stuart Taylor of the National Journal, has said that he would leap in after those cases are announced. I don't know what Stuart will think of the decisions, but I do know that he starts from a viewpoint that has been more critical of governmental use of race than I have. Stuart, we look forward to discussing (and hopefully debating) the decisions. 

Regards,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.