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The U.S. Supreme Court Thursday issued a 5-4 ruling against voluntary-integration plans in K-12 public-school districts in Louisville, Ky. and Seattle, Wash. that use race as a factor to prevent segregation in student assignments. These cases were among the most publicly watched of the court's 2006-2007 term and were the final decisions the court rendered before taking recess until Oct. 1.

In a fiery 185-page opinion with caustic attacks on each other, the justices reversed lower rulings that upheld the schools' plans, declaring "racial classifications" in student assignments to be inherently unconstitutional.

In April, DiversityInc brought together 13 of the nation's foremost affirmative-action authorities to debate school integration and other issues. They talked about the business case for diversity and the critically formulative role of diversity in early experience and education, which provides exposure to diverse viewpoints that encourages creativity and cooperation and respect. Read the digital edition online now.

Today's Opinion: What Did the Justices Say?

Passionate debate so divided the court that the final opinion, which nearly doubles the length of most Supreme Court opinions, included six separate opinions.

Chief Justice John G. Roberts wrote for the majority, which included Antonin Scalia, Samuel Alito and Clarence Thomas, who also filed a separate concurrence.

The majority opinion was based on the interpretation that the plans weren't narrowly tailored enough--a legal concept invoked by the 2003 case that upheld affirmative action at the University of Michigan Law School--to justify race as a factor in school assignments.

Writing for the majority, Roberts wrote: "The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen--discriminating among individual students based on race by relying upon racial classifications in making school assignments."

Moderate Justice Anthony Kennedy, who was the anticipated swing vote in today's decision, agreed that the plans weren't narrowly tailored enough to be constitutional.

"Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school's supply and another's demand," he wrote.

However, he left the door open for schools to continue using race as a factor in admissions under carefully defined legal limits.

"The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic and economic backgrounds," wrote Kennedy. "My views do not allow me to join the balance of the opinion by the Chief Justice, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause."

At the heart of the court's divisiveness on today's ruling is disagreement over the meaning of Brown v. Board of Education, which determined that the "separate but equal" doctrine upheld in an earlier Supreme Court case was unconstitutional. The majority opinion makes no distinction between segregation and integration under the law.

In an extraordinarily literal interpretation of this landmark ruling, Roberts said that the purpose of Brown was to avoid segregation on the basis of race, not to compensate for inequities in public facilities, and that government segregation of students by race violates the Constitution's promise of equal protection in the 14th amendment.

The four dissenting justices--John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter, interpreted Brown differently. "The plurality plays inadequate attention to this law, to past opinions' rationales, their language and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion," wrote Breyer, who authored the dissent. "In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to effectively deal with the growing re-segregation of public schools ... and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause."

In a separate opinion that concurred with the dissent, Stevens wrote, ""There is a cruel irony in the Chief Justice's reliance on our decision in Brown v. Board of Education ... The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed the history books do not tell stories of white children struggling to attend black schools. In this and other ways, the Chief Justice rewrites the history of one of this Court's most important decisions."

"To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome," wrote Kennedy, explaining his concurrence.

An extensive and growing body of research tells us that integration benefits a student body in many ways--by reducing prejudice through exposure, encouraging creativity and improving achievement for traditionally underrepresented students. An exhaustive study of more than 18 million students in 22,000 schools across the country recently found that blacks and Latinos learn more in integrated schools and students of color attending integrated schools perform better in college and the work force, among other findings. Read the full report.

Read the full opinions here.

What Will Happen Next?

"Lower courts look to Supreme Court language for guidance on the question of voluntary affirmative action and diversity efforts in the workplace because diversity efforts in the workplace are not compelled like affirmative action sometimes is," says Gilbert Casellas, former Equal Employment Opportunity Commission chair and an attorney with Mintz Levin and monthly columnist for DiversityInc. "Diversity professionals will look to this opinion and study it very carefully for some guidance as to whether their voluntary efforts to increase diversity in order to respond to a global economy and to a war for talent [are constitutional]."

(Read Gil's latest columns: Major EEO Decisions Impact Your Business and Who Is Being Sued? The Latest EEOC Discrimination Lawsuits)

 

Today's ruling applies only to public education. Still, the anti-affirmative-action-movement will jump on the opportunity to apply the Supreme Court's logic to its cause. "Those who will challenge diversity programs will latch on to the language of the majority opinion and language in earlier opinions on affirmative action and race-based remedies," Casellas said.

 

Affirmative-action foe Ward Connerly's so-called "Michigan Civil Rights Initiative," for example, successfully outlawed affirmative-action programs--those explicitly designed by the civil-rights movement--in public education, employment and contracting in the state when Michigan voters adopted his "color-blind" proposal in November. Read an academic article about the distortion of the meaning of Brown here.

 

Still No Level Playing Field

 

Roberts', Thomas' and others' literal reading of the law fails to appreciate the continuing racial/ethnic inequities in education, employment and healthcare. Today's decision ties the hands of progressive school districts and invites them to wait for a crisis until they can respond to rapidly changing demographics, which clearly are evolving faster than the law.

 

Many school districts nationwide that are predominantly comprised of students of color do not have funding or teacher quality remotely on par with those predominated by white students. The majority of black and Latino children in the United States attend "minority segregated" schools, according to the National Center for Education Statistics.

 

In 2003-04, 78 percent of white students comprised 78 percent of the schools attended by white students, compared with 9 percent each for black and Latino students, 3 percent for Asian-American students and 1 percent for Native American students, according to the Civil Rights Project at Harvard University, and the percentage of black students in white-majority southern schools has declined from about 44 percent in the late 1980's to less than 30 percent in 2003. Read the study.

 

"At the end of the day, people have got to be prepared for the society in which we live and work," says Bernie Milano, president, Ph.D. Project. "We've been at this for a very very long time; it's a very difficult, very delicate issue, and you have such strong sentiments on both sides, but when you get blocked in one place you just find a different way to find a comparable objective."

 

Where Do We Go from Here?

 

There's no one answer. Many talk about race-neutral alternatives to school assignments, but statistics show those don't work, reports the NAACP Legal Defense and Educational Fund, and that socioeconomic solutions do not account for all of the effects of race--the lingering ramifications of centuries of institutionalized discrimination and oppression.

 

"There's just so many people focusing on improving K-12 that schools that are problematic will either improve or the parents are going to have an option of selecting other schools to send them to," says Milano. "It might get at the issue through a quality measurement of the school's approach as opposed to just moving people around." 

 

 

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