Supreme Court Opinion Leaves Brown v. Board of Education 'Bent, Not Broken,' Law Professor Says
By a 5-4 margin, the Supreme Court of the United States today held unconstitutional the voluntary public school integration plans of Louisville, Ky., and Seattle.
"The real story, however, lies beneath this headline, in Justice Anthony Kennedy's separate opinion for himself alone that now constitutes the law of the land," says Neil Siegel a professor of law and political science at Duke University.
"The fundamental American moral ideal of racial integration remains realizable today because Justice Kennedy refused to go along with the Court's four most conservative members," says Siegel, who clerked for Justice Ruth Bader Ginsburg during the 2003 Supreme Court term and served as special counsel to U.S. Sen. Joseph Biden in preparation for Senate Judiciary Committee hearings regarding the confirmation of Chief Justice John Roberts.
The court split in deciding whether school districts may use race as a factor in assigning students to public schools in order to achieve racial integration that reflects districts' overall student populations. Four justices, in an opinion authored by Chief Justice Roberts, endorsed a broad prohibition of any use of race in student assignment. Another four justices, in a dissenting opinion written by Justice Stephen Breyer, would have upheld the plans.
Siegel calls Kennedy's separate opinion "a resounding endorsement of racial integration in public education while simultaneously a restriction on the ability of school districts to classify individual students on the basis of race."
"Justice Kennedy rejected Chief Justice Roberts' remarkable attempt to use ‘Brown v. Board of Education' to defeat the cause of racial integration, even while agreeing with the chief justice and Justices Scalia, Thomas and Alito that the two plans before the Court were unconstitutional because of their use of individual racial classifications," Siegel says. "He insisted that there is a compelling interest in avoiding racial isolation and that a district may consider it a compelling interest to achieve a ‘diverse student population,' including one that is racially diverse."
Kennedy's endorsement of specific methods that local communities might employ in achieving diversity in schools, from strategic site selection for new schools to recruiting students and faculty in a targeted fashion and tracking racial enrollment and performance, was particularly important, Siegel says.
"It would have been devastating to the cause of racial integration in public education had Justice Kennedy ruled these methods out of bounds in the name of an alleged constitutional commitment to colorblindness that is historically uninformed.
"Today's decision means this: 53 years after the Supreme Court of the United States made a promise to the American people in ‘Brown,' the Court has bent but it has not broken," Siegel says. "In Justice Kennedy's words, the Court has declined to abandon its insistence that ‘[t]his 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.'"