Legal Affairs July 2007

Is There a Middle Ground on Race?

The Supreme Court decision on school integration illustrates the pitfalls of both the conservative and the liberal approaches to the problem of race.
More

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs' approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts's plurality opinion for the four-man conservative bloc oversimplified the Court's precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court—in Seattle and metropolitan Louisville, Ky.—"are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students—especially poor blacks—hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

But unlike such preferences, race-based student assignment programs, if well designed, neither give minorities a systematic edge over whites nor displace merit selection by favoring less-qualified over better-qualified applicants. Two of our most thoughtful federal appellate judges—Michael Boudin of Boston and Alex Kozinski of Pasadena, Calif., both Republican appointees—have stressed these distinctions. In Kozinski's words, school integration "gives the American melting pot a healthy stir without benefiting or burdening any particular group."

The Roberts opinion also minimized the vast gulf between the race-based measures at issue in these cases and the racial caste system that once oppressed descendants of slaves in the segregated South. And the chief justice exuded eagerness to block local and state officials around the nation, by judicial decree, from promoting school integration.

If this is judicial modesty, what would conservative judicial activism look like?

Jump to comments
Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

Get Today's Top Stories in Your Inbox (preview)

A Wild Vacation in the Pacific Northwest

A not-so-ordinary road trip, featuring extra-tall art bikes, skateboards, and hand-painted vans


Elsewhere on the web

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

Adventures in Legal Weed

Colorado is now well into its first year as the first state to legalize recreational marijuana. How's it going? James Hamblin visits Aspen.

Video

What Makes a Story Great?

The storytellers behind House of CardsandThis American Life reflect on the creative process.

Video

Tracing Sriracha's Origin to Thailand

Ever wonder how the wildly popular hot sauce got its name? It all started in Si Racha.

Video

Where Confiscated Wildlife Ends Up

A government facility outside of Denver houses more than a million products of the illegal wildlife trade, from tigers and bears to bald eagles.

Video

Is Wine Healthy?

James Hamblin prepares to impress his date with knowledge about the health benefits of wine.

Video

The World's Largest Balloon Festival

Nine days, more than 700 balloons, and a whole lot of hot air

Writers

Up
Down

More in Politics

More back issues, Sept 1995 to present.

Just In