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.
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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?

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

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