Courting disaster, take two

In a surprise to I expect exactly nobody, the Supreme Court has ruled that public schools may not use race as a criteria, even one among several, in determining to what particular school a child is assigned. The vote, in a surprise to I expect exactly nobody, was 5-4, with the usual suspects providing the turn-back-the-clock majority.

As the BBC noted,

[t]he decision, one of the most important civil rights rulings in years, may affect millions of children in the US.

The case, which combined two appeals into one, involved school choice programs in Seattle, Washington, and Louisville, Kentucky. In Seattle, CNN explained, race was one of several "tiebreakers" in cases where there are more applicants to a school than there are places. In the case of Louisville, which is part of Jefferson County, county officials

requir[ed] that most public schools have at least 15 percent and no more than 50 percent African-American enrollment. The idea was to reflect the whole of Jefferson County, which is 60 percent white and 38 percent black.

This is what Solicitor General Paul Clement told the Court, arguing on behalf of the Bush administration (which supported the suits against the plans) constituted "very stark racial quotas." A range of 15%-50% is a "stark quota?"

What makes this all the more maddening is that the Louisville plan arose from federal court oversight; when the plan was instituted it had to meet federal court approval as one with the aim of putting an end to unconstitutional racial segregation. After that oversight ended in the late 1990s, county officials voluntarily continued the plan in order to prevent the district from becoming re-segregated. That is, it was a plan approved by a federal court to overcome segregation which succeeded after decades of effort and was being continued for the specific purpose of maintaining that success. And the Filthy Five just booted it. Which should tell you all you need to know.

That this was the plan, that the wingnuts on the Court set out from the beginning, indeed went out their way, to attack the very basis of school desegregation plans is undeniable. As the New York Times noted,

earlier, when Justice Sandra Day O’Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.

That is, the Supreme Court usually would only hear such a case if there were differences among appellate courts to be resolved. But there weren't. The Court ignored its own standard practice in order to undermine school diversity plans.

As chillingly revealing as that is, it wasn't even the worst of it, as both the language and facts of the battle for equality continue to be smirkingly expropriated into the service of the agenda of the reactionaries. Chief Justice John Roberts not only had the astonishing gall to claim the mantle of 1954's Brown v. Board of Education, the landmark case that ruled "separate but equal" schools are unconstitutional, he wrote

"What do the racial classifications do in these cases if not determine admission to a public school on a racial bias?"

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he added.

Yes! Why haven't we seen this before? Of course! The way to end racial discrimination is to pretend it doesn't exist! All that blocks us from a blessed world of true racial harmony is trying to do something about racism! I see it all now! Thank you, Justice Roberts, you make perfect nonsense! And in case you don't get the full impact, note that by his argument, every law against racism, every program to promote integration, every affirmative action program, all of them are now up for grabs - or, more properly, have been turned into clay pigeons for the right-wing's next round of political skeet, which, I project, will come sooner rather than later.

It's with good cause that Justice Stephen Breyer said “This is a decision that the court and the nation will come to regret.”

Meanwhile, school officials seek to find ways to continue to work for diversity, insisting that while they cannot use "race-specific" rules, they can use "race-conscious" ones. As examples, Gary Ikeda, the general counsel of Seattle Public Schools,

said "race-conscious" programs would include magnet schools, recruiting families to specific schools, and allocating teachers and resources "for the purpose of promoting racial diversity."

Officials in Seattle and Louisville are apparently relying on Justice Anthony Kennedy's concurring opinion in which, despite rejecting the two specific programs, he said that

under narrow circumstances race can still be considered by school officials.

"This nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all its children," he wrote. "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."

It's a thin reed to cling to, but his rejection of Roberts' "all-too-unyielding insistence that race cannot be a factor" does put a roadblock in the troglodytes path toward a "colorblind Constitution" where, in accordance with Roberts' words, actually doing anything about racism is in effect impermissible.

Footnote: In fairness, I should mention that at a debate at Howard University in Washington, DC,

[a] historically diverse field of Democratic presidential candidates - a woman, a black, an Hispanic and five whites - denounced an hours-old Supreme Court affirmative action ruling Thursday night and said the nation's slow march to racial unity is far from over.

The circumstances - a debate at an historically black university hours after the Court ruled - surely made such comments inevitable, but still, better they were said than not.