Assigning students by race has a bad day in court

NY Times:

By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional.

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At its most profound, the debate among the justices was over whether measures designed to maintain or achieve integration should be subjected to the same harsh scrutiny to which Brown v. Board of Education subjected the regime of official segregation. In the view of the conservative majority, the answer was yes.

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Before the arguments on Monday, the challenge for the school board lawyers defending the plans, along with their allies in the civil rights community, had appeared to be to persuade the justices that the appropriate analogy was not to affirmative action, a freighted subject for the court in which benefits are bestowed on one group and withheld from another, but rather to integration, in which the goal is to educate everyone as equally as possible.

But by the end of the tense two hours of argument, that effort had not so much failed as it had become irrelevant. Lawyers for the school systems found themselves struggling, under the justices’ questioning, to meet the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education.

For example, Michael F. Madden, the Seattle district’s lawyer, tried to argue that because the Seattle high schools were “basically comparable,” and “everyone gets a seat,” the court should not view the plan as “a selective or merit-based system where we adjudge one student to be better than the other.”

It was, Mr. Madden said, “a distributive system” that was “quite wholly dissimilar to a merit or selective-based system.”

Chief Justice John G. Roberts Jr. countered, “Saying that this doesn’t involve individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color and not any other factor.”

He added: “I mean, everyone got a seat in Brown as well. But because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there’s no problem here because everybody gets a seat distinguishable?”

“Because segregation is harmful,” Mr. Madden replied.

“It’s an assignment on the basis of race, correct?” the chief justice persisted.

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The liberal justices were described as dispirited and Anthony "Swing Vote" Kennedy made it pretty clear that he did not care for the school district plan. Liberal NY Times writer Linda Greenhouse also sounded dispirited in her reporting. The liberals' real problem is that they are arguing that the express words of the constitution should not apply to their plans because their motives are pure. When Kennedy suggested ways they could achieve their objectives by magnet schools the liberals were still clueless and could not recognize the difference between voluntary enrollment and assigning by race.