Sad Day, the End of an Era

The Supreme Court has ruled 5-4 against the racial diversity measures used in Seattle and Louisville. The full opinion, with dissents is here. I’m going to be writing and linking more on this in the coming days, for now I just want to highlight this excerpt from Justice Steven’s dissent:

There is a cruel irony in THE CHIEF JUSTICE’s reliance on our decision in Brown v. Board of Education, 349 U. S.294 (1955). The first sentence in the concluding paragraph of his opinion states: Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. Ante, at 40. This sentence reminds me of Anatole France’s observation: [T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.1 THE CHIEF JUSTICE fails to note that it wasonly black schoolchildren who were so ordered; indeed, thehistory books do not tell stories of white children struggling to attend black schools.2 In this and other ways, THECHIEF JUSTICE rewrites the history of one of this Court’s most important decisions. Compare ante, at 39 (.history will be heard.), with Brewer v. Quarterman, 550 U. S. ___,___ (2007) (slip op., at 11) (ROBERTS, C. J., dissenting) (.Itis a familiar adage that history is written by the victors.).

THE CHIEF JUSTICE rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude.3 The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinions none of which even approached unanimity grandly proclaiming that all racial classifications must be analyzed under strict scrutiny. See, e.g., Adarand Constructors,Inc. v. Peña, 515 U. S. 200, 227 (1995). Even today, two of our wisest federal judges have rejected such a wooden reading of the Equal Protection Clause in the context of school integration. See 426 F. 3d 1162, 1193.1196 (CA9 2005) (Kozinski, J., concurring); Comfort v.Lynn School Comm., 418 F. 3d 1, 27.29 (CA1 2005)(Boudin, C. J., concurring). The Court’s misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution. See Craig v. Boren, 429 U. S. 190, 211(1976) (concurring opinion).4If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in1967 upholding a state statute mandating racial integration in that State’s school system. See School Comm. of Boston v. Board of Education, 352 Mass. 693, 227 N. E. 2d729.5 Rejecting arguments comparable to those that the plurality accepts today,6 that court noted: .It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment. Id., at 698, 227 N. E. 2d,at 733 (footnote omitted).

Thomas J. Mertz

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