JURIST Guest Columnist Leonard Baynes of the St. John's University School of Law says the US Supreme Court's plurality rejection of race as a permissible factor in assigning students to public schools overlooks key moral considerations and is itself immoral…

In the recent Louisville and Seattle desegregation decisions, a plurality of the U.S. Supreme Court made it tougher for school districts to achieve racial diversity and eliminate racially isolated public school systems. In essence, the plurality found an immoral equivalence between using race to include and using race to exclude. This equivalence is not only incongruent but also immoral.

Writing for the plurality, Chief Justice John Roberts declared the school assignment plans unconstitutional because they focused on illegitimate racial balancing. Roberts proclaimed that the “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Roberts equated the school assignment plans designed to achieve racial diversity to the separate-but-equal regime that existed prior to the Brown v. Board of Education decision. Roberts said that

Before Brown, school children 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.

In a concurring opinion siding with the Chief Justice, Justice Clarence Thomas compared dissenting Justice Stephen Breyer’s opinion, which would have upheld the race-conscious school assignment plans, to the arguments of segregationists in the pre-Brown era.

The plurality’s misguided sense of immorality is out of sync with the precepts of many mainstream religions, which favor the use of race to foster racial inclusion and diversity in order to avoid racial isolation. For example, Catholic Social Thought teaches that “equality does not mean uniformity.” Equality of treatment recognizes differences. In 1979, the National Conference of Catholic Bishops issued a Pastoral Letter on Racism that condemned the subtly racist structures of U.S. society. The Bishops noted that these structures reflect the values which society upholds and are “geared to the success of the majority and the failure of the minority.”

The Bishops presciently questioned the motives of those in the antidiversity movement. They wrote:

[R]acism is sometimes apparent in the growing sentiment that too much is being given to racial minorities by way of affirmative action programs or allocations to redress long-standing imbalances in minority representation and government-funded programs for the disadvantaged. At times, protestations claiming that all persons should be treated equally reflect the desire to maintain a status quo that favors one race and social group at the expense of the poor and the nonwhite.

Finally, the Bishops recognized that racism obscures the evils of the past, denies the burdens that history has placed upon minorities, and fails to acknowledge the need for restitution and restorative and redistributive justice.

Moreover, the Court’s plurality fails to take into account the historic reality that segregation played (and still plays) in our society. The plurality fails to recognize that many people of color still have little geographical choice in the location of the family home or the K-12 school assignment of their children. The choices of people of color are often limited by the immoral and discriminatory acts of builders, real estate agents, bankers, insurance companies, and local zoning boards.

The plurality would make it virtually impossible to rectify major educational inequities in society. Urban students of color are most likely to go to inadequately-funded, segregated schools. In fact, nationwide, seventy percent of African American children attend public schools with primarily minority populations. Uncertified and inexperienced teachers are disproportionately assigned to public schools with the most at-risk students making these students’ educations also at risk. As a consequence, in many parts of the country, only sixty percent of high school students receive a diploma within four-to-six years

Gary Orfield’s book, Dismantling Desegregation: the Quiet Reversal of Brown v. Board of Education notes that wealthy public schools offer three times more high ability courses than low ability classes. In contrast, schools with high concentrations of poverty offer equal proportion of high ability and low ability courses. So a high performing black student at a high poverty school will not have the opportunity to take as many high-ability classes. More importantly, this student will not receive the depth of the coverage that a similarly situated white counterpart receives at the more affluent suburban school.

The failure to address these educational inequities is immoral. Fortunately, in his concurring opinion, Justice Anthony Kennedy implicitly acknowledged that the plurality opinion was immoral. Kennedy specifically stated: “this Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children.”

Although Justice Kennedy supplied the key fifth vote overturning the school assignment programs for failure to satisfactorily explain the reasons for the assignment programs, he joined the dissenting justices in permitting the use of race in school assignment cases. Kennedy explained his disagreement with Roberts:

The plurality opinion is open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent that the plurality opinion suggests the Constitution mandates that state and local authorities must accept the status quo of racial isolation in schools, it is, in my view profoundly mistaken.

By finding a false moral equivalence between the use of race for segregation and the use of race for diversity, the plurality opinion would leave us paralyzed to address the discrimination that caused the school systems to be segregated in the first place and the still present societal discrimination that causes them to remain segregated. In my opinion, the plurality opinion is immoral.

Leonard M. Baynes is Professor of Law and Director of the Ronald H. Brown Center for Civil Rights and Economic Development at St. John’s University School of Law
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