Washington – Supreme Court deliberations are private, but Monday’s oral arguments on whether it is constitutional to allow school systems to use race in making school assignments became as much a public debate between the divided justices as a questioning of lawyers.
And after two hours, it seemed to reflect a court majority highly skeptical of the proposition that the benefits of racially diverse public schools can justify any restriction on an individual’s constitutional right of equal protection.
“You’re characterizing each student by reason of the color of his or her skin,” Justice Anthony Kennedy told a lawyer representing the Seattle school board. “And it seems to me that that should only be, if ever allowed, allowed as a last resort.”
The ultimate decision is likely to be one of the most defining of the court headed by the new chief justice, John Roberts, and a powerful statement about where the nation stands more than 50 years after Brown vs. Board of Education demanded an end to segregated schools.
The court, encouraged by the Bush administration, has grown increasingly distrustful of racial classifications and reached out to take up the cases challenging schools in Seattle and Louisville, Ky., even though appeals courts had upheld them as constitutional.
With the departure of former Justice Sandra Day O’Connor, Kennedy is now seen as the justice mostly likely to depart from his normally conservative outlook. His active questioning of lawyers representing the school boards, who have been sued by white parents whose children were denied their first choice of schools, was the most closely watched.
He noted that even the Bush administration, which intervened on behalf of the white parents, said in its brief that “school districts have an unquestioned interest in reducing minority isolation,” but it added that only if it were achieved by “race-neutral means.”
But he also repeatedly questioned the constitutionality of allowing a school system, especially one that has remedied past discrimination, to make school assignment decisions based “solely on skin color.”
In the cases at issue – Parents Involved in Community Schools Inc. vs. Seattle School District and Meredith vs. Jefferson County (Ky.) Board of Education – both systems offer parents and students a choice of schools, partly in order to achieve a level of integration that wouldn’t otherwise be possible because of racially segregated housing patterns.
