Dissecting the Controversial High Court Decision[i]
Should society be color-blind? Is the US Constitution color-blind? These are the questions debated by the US Supreme Court in their controversial June 28, 2007, decision striking down two school integration programs. With its emotional and splintered decision, the Court wrestled with a question that has dogged the long fight over integration: “When will the nation be able to disregard an individual’s race entirely?”
A Conservative View
Some conservatives, citing Rev. Martin Luther King Jr.’s hope that people will one day be judged not “by the color of their skin but by the content of their character” and former Justice John Harlan’s opinion that “our Constitution is color-blind,” have long argued that the time has come to set aside racial preferences of any kind. The way to remedy discrimination against minorities, they insist, is not to endorse discrimination against whites.
Chief Justice John Roberts Jr., joined by the court’s three other conservatives, gave some hope Thursday to advocates of that approach. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote in perhaps the snappiest sentence of his opinion.
For decades, some conservatives have argued fiercely against atoning for the nation’s racial sins by explicitly favoring minorities, whether through affirmative action, contract set-aside programs, or desegregation plans. Society should be color-blind, they have contended, and perpetuating racial classifications is highly destructive.
A Moderate View
On the other hand, the moderate-conservative Justice Anthony Kennedy noted that a color-blind society may be a wonderful goal, but it ignores reality.”The enduring hope is that race should not matter; the reality is that too often it does,” Kennedy wrote. “As an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.”
A Liberal View
Liberals have argued with similar passion that after centuries of slavery, discrimination and racism, simply treating everyone equally now will not alleviate the inequality still suffered by blacks in housing, education and other areas.
“The Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are ‘conscious’ of the race of individuals,” Justice Breyer wrote. “The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.”
The Constitutional Issue
The impassioned dispute that played out among the justices in the pages of their opinions often touched on what is generally regarded as the grandest civil rights case of all: Brown vs. Board of Education, the 1954 case that outlawed segregation and the doctrine of “separate but equal.”
Both sides Thursday claimed the mantle of Brown. Roberts and his camp claimed that Brown’s principle, that students cannot be discriminated against on the basis of race, was the one they were following.”When it comes to using race to assign children to schools, history will be heard,” Roberts wrote. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases bear the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”
That argument seemed to particularly anger the court’s four liberals, who reacted strongly against the notion of comparing the school districts in Louisville and Seattle, struggling for racial balance, to the racists and bigots of the nation’s past. “It is a cruel distortion of history to compare Topeka, Kan., in the 1950s to Louisville and Seattle in the modern day,” Breyer wrote.
Justice Stevens used similar language. “There is a cruel irony in the chief justice’s reliance on our decision in Brown vs. Board of Education,” he wrote. “It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision.”
Not every case so visibly stirs the justices’ emotion. In most decisions, those in the minority conclude their opinions by writing “I respectfully dissent” or simply “I dissent.”Breyer’s dissent Thursday seemed impelled by a stronger force. “This is a decision that the court and the nation will come to regret,” he concluded his opinion. “I must dissent.”
[i]Excerpted and edited with personal commentary by Bob Kellemen from the Chicago Tribune, June 29, 2007, by Naftali Bendavid, Washington Bureau Tribune staff reporters Michael J. Higgins, Carlos Sadovi, and Gary Washburn.