Sunday, July 08, 2007

Justice Thomas Forbids Race for Student Assignments Concurring Opinion

Justice Thomas Slaps Down Justice Breyer

Including that Justice Breyer cites an academic article that contradicts his own point: "In the pages following the ones [Justice Breyer] cites, the author of that article remarks that 'the main reason white and minority students perform better academically in majority white schools is likely that these schools provide greater opportunities to learn. In other words, it is not desegregation per se that improves achievement, but rather the learning advantages some desegregated schools provide'.”

Justice Thomas also details that Justice Breyer uses the same arguments that the segregationists did.

Justice Thomas Forbids Race for Student Assignments Concurring Opinion. Below is a 7 page "summary", but you should read the 20 page concurring opinion at

Case: “The petitioner in the Louisville case received a letter from the school board informing her that her kindergartener would not be allowed to attend the school of petitioner’s choosing because of the child’s race.”

Justice Thomas’ words or words cited from other cases are put in another order here as perhaps a shorter and easier to read version. As I see it the major issues Justice Thomas addresses are:
A) Constitutional requirements
B) Strict Scrutiny requirements
C) Justice Breyer’s claims of the benefits of racial balancing
D) Resegregation vs Racial Balancing
E) Justice Breyer uses the same arguments as segregationists
F) Social engineering elites

I have changed Justice Thomas’ word “the dissent” to “Justice Breyer”

Constitutional Requirements
The Constitution generally prohibits government race-based decisionmaking, but this Court has authorized the use of race-based measures for remedial purposes in two narrowly defined circumstances. What [Justice Breyer] fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. Race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution. Today, the Court holds that state entities may not experiment with race-based means to achieve ends they deem socially desirable.

In schools that were formerly segregated by law, race-based measures are sometimes constitutionally compelled to remedy prior school segregation.

Contrary to [Justice Breyer]’s arguments, resegregation is not occurring in Seattle or Louisville; these school boards have no present interest in remedying past segregation; and these race-based student-assignment programs do not serve any compelling state interest. Accordingly, the plans are unconstitutional.

Disfavoring a color-blind interpretation of the Constitution,[Justice Breyer] would give school boards a free hand to make decisions on the basis of race—an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education. This approach is just as wrong today as it was a half-century ago. The Constitution and our cases require us to be much more demanding before permitting local school boards to make decisions based on race.

Race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” [Grutter] “[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” [Bakke]

I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” [Plessy v. Ferguson (1896)] And my view was the rallying cry for the lawyers who litigated Brown. See, e.g., Brief for Appellants in Brown v. Board of Education “That the Constitution is color blind is our dedicated belief” and “The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone” and “[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action”);.

What was wrong in 1954 cannot be right today. Whatever else the Court’s rejection of the segregationists’ arguments in Brown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the Brown Court. The fact that racial discrimination was preferable to the relevant communities was irrelevant to the Brown Court. And the fact that the state and local governments had relied on statements in this Court’s opinions was irrelevant to the Brown Court. The same principles guide today’s decision.

None of the considerations trumpeted by [Justice Breyer] is relevant to the constitutionality of the school boards’ race-based plans. The plans before us base school assignment decisions on students’ race. Because “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” such race-based decision making is unconstitutional. Plessy, supra, at 559 (Harlan, J., dissenting).

Strict Scrutiny Requirements
The Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance. The idea that government racial classifications must be subjected to strict scrutiny did not originate in Adarand. As early as Loving v. Virginia (1967), this Court made clear that government action that “rest[s] solely upon distinctions drawn according to race” had to be “subjected to the ‘most rigid scrutiny.’ ”

Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race.

Racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.

Typically will not be nearly as difficult as [Justice Breyer] makes it seem [to determine if de jure or de facto segregation occurred]. In most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races.

[Justice Breyer] cites no law or official policy that required separation of the races in Seattle’s schools. Nevertheless, [Justice Breyer] tries to cast doubt on the historical fact that the Seattle schools were never segregated by law.

This Court has permitted government units to remedy prior racial discrimination only in narrow circumstances. Neither school board asserts that its race-based actions were taken to remedy prior discrimination. As for Louisville, its slate was cleared by the District Court’s 2000 dissolution decree, which effectively declared that there were no longer any effects of de jure discrimination in need of remediation.

Despite the [Justice Breyer]’s repeated intimation of a remedial purpose, neither of the programs in question qualifies as a permissible race-based remedial measure. Lacking a cognizable interest in remediation, neither of these plans can survive strict scrutiny because neither plan serves a genuinely compelling state interest. Thus, the programs are subject to the general rule that government race-based decisionmaking is unconstitutional.

These arguments are inimical to the Constitution and to this Court’s precedents. We have made it unusually clear that strict scrutiny applies to every racial classification. [Adarand] Johnson v. California: “We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications” There are good reasons not to apply a lesser standard to these cases. The constitutional problems with government race-based decisionmaking are not diminished in the slightest by the presence or absence of an intent to oppress any race or by the real or asserted well-meaning motives for the race-based decisionmaking. [Adarand]

“[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.” [ Adarand] As these programs demonstrate, every time the government uses racial criteria to “bring the races together,” someone gets excluded, and the person excluded suffers an injury solely because of his or her race.

[Justice Breyer] does not explain how its recognition of an interest in teaching racial understanding and cooperation here is consistent with the Court’s rejection of a similar interest in Wygant. In Wygant, a school district justified its race-based teacher-layoff program in part on the theory that “minority teachers provided ‘role models’ for minority students and that a racially ‘diverse’ faculty would improve the education of all students.”

Stripped of the baseless and novel interests [Justice Breyer] asserts on their behalf, the school boards cannot plausibly maintain that their plans further a compelling interest. Only “those measures the State must take to provide a bulwark against anarchy . . . or to prevent violence” and “a government’s effort to remedy past discrimination for which it is responsible” constitute compelling interests. Neither of the parties has argued—nor could they—that race-based student assignment is necessary to provide a bulwark against anarchy or to prevent violence.

Justice Breyer’s claims of the benefits of racial balancing
[Justice Breyer] asserts that racially balanced schools improve educational outcomes for black children.

[However} “[T]here is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment”. The Seattle school board itself must believe that racial mixing is not necessary to black achievement. Seattle operates a K–8 “African-American Academy,” which has a “nonwhite” enrollment of 99%.

[Justice Breyer] argues that the social science evidence is “strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one.” This assertion is inexplicable. It is not up to the schoolboards—the very government entities whose race-based practices we must strictly scrutinize—to determine what interests qualify as compelling under the Fourteenth Amendment to the United States Constitution. Rather, this Court must assess independently the nature of the interest asserted and the evidence to support it in order to determine whether it qualifies as compelling under our precedents. In making such a determination, we have deferred to state authorities only once, see Grutter and that deference was prompted by factors uniquely relevant to higher education. (“Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions”).

In addition to these defects, the democratic element of the integration interest fails on [Justice Breyer]’s own terms. [Justice Breyer] again relies upon social science research to support the proposition that state-compelled racial mixing teaches children to accept cooperation and improves racial attitudes and race relations. Here again, though, [Justice Breyer] overstates the data that supposedly support the interest.

At least one of the academic articles the [Justice Breyer] cites to support this proposition fails to establish a causal connection between the supposed educational gains realized by black students and racial mixing. See Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733 (1998). In the pages following the ones [Justice Breyer] cites, the author of that article remarks that “the main reason white and minority students perform better academically in majority white schools is likely that these schools provide greater opportunities to learn. In other words, it is not desegregation per se that improves achievement, but rather the learning advantages some desegregated schools provide.”

Resegregation vs Racial Balancing
Segregation is the deliberate operation of a school system to “carry out a governmental policy to separate pupils in schools solely on the basis of race.” [Swann v. Charlotte] Racial imbalance is the failure of a school district’s individual schools to match or approximate the demographic makeup of the student population at large. Racial imbalance is not segregation.

It is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance. First, as demonstrated above, the two concepts are distinct. Although racial imbalance can result from de jure segregation, it does not necessarily, and the further we get from the era of state-sponsored racial separation, the less likely it is that racial imbalance has a traceable connection to any prior segregation.

Racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. Racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself.

Justice Breyer uses the same arguments as segregationists
The segregationists in Brown embraced the arguments the Court endorsed in Plessy. Though Brown decisively rejected those arguments, today [Justice Breyer] replicates them to a distressing extent. Thus, [Justice Breyer] argues that“[e]ach plan embodies the results of local experience and community consultation.” Similarly, the segregationists made repeated appeals to societal practice and expectation. “[A] State has power to establish a school system which is capable of efficient administration, taking into account local problems and conditions”.

“[T]he historical background that exists, certainly in this Virginia situation, with all the strife and the history that we have shown in this record, shows a basis, a real basis, for the classification that has been made”; describing the potential abolition of segregation as “contrary to the customs, the traditions and the mores of what we might claim to be a great people, established through generations, who themselves are fiercely and irrevocably dedicated to the preservation of the white and colored races” [Transcript of Oral Arguments .in Davis v. County School Board]

Justice Breyer: “weight [must be given] to a local school board’s knowledge, expertise, and concerns,” post, at 48, and with equal vigor, the segregationists argued for deference to local authorities. “We advocate only a concept of constitutional law that permits determinations of state and local policy to be made on state and local levels. We defend only the validity of the statute that enables the Topeka Board of Education to determine its own course”

[Justice Breyer] argues that today’s decision “threatens to substitute for present calm a disruptive round of race-related litigation,” post, at 2, and claims that today’s decision “risks serious harm to the law and for the Nation,” post, at 65. The similarities between [Justice Breyer]’s arguments and the segregationists’ arguments do not stop there. Like [Justice Breyer], the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment.25 And just as [Justice Breyer] argues that the need for these programs will lessen over time, the segregationists claimed that reliance on segregation was lessening and might eventually end.

The segregationists in Brown argued that their racial classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott “It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools”

Social engineering elites
Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure. Unlike [Justice Breyer] I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmakingon the assumption that their intentions will forever remain as good as Justice Breyer’s. See The Federalist No. 51: “If men were angels, no government would be necessary”. Indeed, the racial theories endorsed by the Seattle school board should cause [Justice Breyer] to question whether local school boards should be entrusted with the power to make decisions on the basis of race. The Seattle school district’s Website formerly contained the following definition of “cultural racism”: “Those aspects of society that overtly and covertly attribute value and normality to white people and whiteness, and devalue, stereotype, and label people of color as ‘other,’ different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard . . . .”

Justice Breyer] accuses me of “feel[ing] confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria” and chastises me for not deferring to democratically elected majorities. Regardless of what Justice Breyer’s goals might be, this Court does not sit to “create a society that includes all Americans” or to solve the problems of “troubled inner city schooling.” We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial imbalance, I will not defer to legislative majorities where the Constitution forbids it.

It should escape no one that behind Justice Breyer’s veil of judicial modesty hides an inflated role for the Federal Judiciary. [Justice Breyer]’s approach confers on judges the power to say what sorts of discrimination are benign and which are invidious. Having made that determination (based on no objective measure that I can detect), a judge following Justice Breyer’s] approach will set the level of scrutiny to achieve the desired result. Only then must the judge defer to a democratic majority. In my view, to defer to one’s preferred result is not to defer at all.

To equate the achievement of a certain statistical mix in several schools with the elimination of the system of systematic de jure segregation trivializes the latter accomplishment. Nothing but an interest in classroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts’ racial balancing programs.

“generic lessons in socialization and good citizenship” are too sweeping to qualify as compelling interests”. If governments may constitutionally use racial balancing to achieve these aspirational ends in schools, they may use racial balancing to achieve similar goals at every level—from state-sponsored 4–H clubs …to the state civil service.

[Justice Breyer] would constitutionalize today’s faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to “solve the problems at hand,” post, at 21, the Constitution enshrines principles independent of social theories.

See Plessy (Harlan, J. dissenting) “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time . . . . But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. . . . Our Constitution is color-blind, and neither knows nor tolerates classes among citizens”. Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.

[Chief Justice Roger Taney wrote in the infamous Dred Scott vs Sandford 1857] “[T]hey [members of the “negro African race”] had no rights which the whiteman was bound to respect”. Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.

Concurring Opinion in SUPREME COURT OF THE UNITED STATES Nos. 05–908 and 05–915
[June 28, 2007]


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