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.

The liberals. The in-some-ways-apt critique of the decision from the four liberal dissenters was marred by apocalyptic rhetoric, mostly written by Justice Stephen Breyer, exaggerating what was at stake while hysterically accusing the conservatives of seeking to "break [the] promise" of "true racial equality" made by Brown.

To the contrary, the incremental integration produced by the two race-based student assignment plans before the Court was slight. More broadly, the justices' power to advance, or retard, progress toward "true racial equality" is modest in today's world. A broad social consensus against legal subordination of minorities coexists with stubbornly persistent racial inequalities in education. These inequalities have outlasted decades of liberal Supreme Court decisions, of forced busing (which led to white flight), and of other integration programs far more aggressive than those in place now.

The dissenters nonetheless seemed eager to give local officials wide latitude to tell school children, in effect, "You can't come to this school because you are the wrong color." More broadly, their approach would perpetuate into generations yet unborn the system of racial preferences for certain minorities that pervades much of American life.

The balance-tipper. Justice Anthony Kennedy, the centrist conservative who cast the deciding vote, wisely whacked the Roberts plurality for implying "an all-too-unyielding insistence that race cannot be a factor" in government decision-making, for being "too dismissive" of the governmental interests in promoting "equal opportunity regardless of race," and for complacency about "de facto resegregation in schooling." On the other hand, Kennedy noted that the dissenters' embrace of racial classifications and preferences had no "principled limit."

But Kennedy's effort to identify the circumstances in which "pernicious" race-based assignments could be justified as a "last resort" opened him to the charge (by Benjamin Wittes, writing in The New Republic Online) that he "announces no coherent rule that any school system could apply with confidence that it will garner Kennedy's vote in the future by doing so."

This is not just a failure of imagination on Kennedy's part. I doubt that anybody could come up with a very clear rule for steering between the conservatives' view that all race-based student assignment plans are unconstitutional and the liberals' broad approval of such programs.

So what's a moderate to do? Focus on the facts, in my view, and hope that a reasonably coherent rule will emerge through case-by-case adjudication.

Under the precedents requiring that even the most benignly motivated racial classifications be "narrowly tailored" to advance a "compelling interest," Kennedy was probably correct to strike down Seattle's crude use of race. But he should perhaps have sent the Louisville program back to the lower courts to clarify the record rather than striking it down based on confusion about exactly how it worked.

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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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