Thursday, June 28, 2007

Guest Blogger: Roberts v. Kennedy in the School Integration Cases

by Samuel Bagenstos, Constitutional Law Professor, Washington University, Saint Louis

At the end of his opinion in the school integration cases today, speaking for himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts reduces the matter to a simple point: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Here, he echoes Professor William Van Alstyne’s retort to Justice Blackmun’s famous statement in Bakke that “[t]o get beyond racism, we must first take account of race.” In response to that statement, Professor Van Alstyne wrote that “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life—or in the life or practices of one's government—the differential treatment of other human beings by race.”

But there is a disconnect here. The Louisville and Seattle school districts did not claim that they needed to engage in race-conscious student assignment to keep themselves from discriminating on the basis of race. As Chief Justice Roberts explained, the Louisville school district had already been declared unitary by a federal court, and there had never been any finding or admission of discrimination by the Seattle school district. The school districts contended instead that (among other things) racially identifiable housing patterns—themselves significantly the result of private discrimination—led to racially identifiable schools. Does a school system help us get beyond racism if it is forced to rely on and entrench the results of private housing segregation in school assignments? Do schools that are de facto segregated, as a result of these patterns, help us “stop discrimination on the basis of race”?

Chief Justice Roberts gives us no reason to believe that a rule of formal governmental race-blindness, that entrenches and enforces the results of private racial discrimination, will “stop discrimination on the basis of race.” He gives us nothing more than the platitude that when the government takes race into account it “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.” (Here he quotes from a 1993 opinion involving racial gerrymandering in redistricting.) Chief Justice Roberts is making an awfully doubtful empirical assertion here, without providing any empirical evidence. And the normative premise that school districts must take private discrimination as they find it, with their hands tied from responding to it, seems to me totally unjustifiable. Remember that here we are dealing with school districts that voluntarily chose to adopt integration plans—this isn’t a case involving court-ordered integration.

Justice Kennedy, by contrast, gets this key point: “To the extent that the plurality opinion suggests that the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.” Justice Kennedy’s concurrence in the judgment is far from perfect, but it is the first time that he has made clear in an opinion his understanding of the problem of private discrimination.

Chief Justice Roberts’s opinion will draw a lot of attention and criticism today—as well it should. The idea that school integration is at all the same as dividing students into different schools on the basis of race is offensive and blinkered. But Justice Kennedy’s opinion will be more important at the end of the day: It recognizes that school districts have a constitutionally permissible role in alleviating the effects of private discrimination—and that they may take account of race in doing so, so long as racial classifications of individual students are used only as a last resort. Given what might have happened in this case—and what Chief Justice Roberts wanted to have happen in this case—Justice Kennedy’s separate opinion leaves school districts a lot of space to do the right thing.


MikeSar said...

Chief Supreme Court Justice Roberts did not see the difference between Law and Values implied by The Law.
Ideas, concepts and values are part and substance of Education. To define acts to conform with the law is the key part of Justice.

Judges can no more chase and arrest criminals than police officers can be expected to re-educate people on Values and ideas inherent in the Law. That is the role of teachers in Education.

Therefore, in this kind of crime, Education must be a key part of the reparation and Justice.

It is well established law that Discrimination on the basis of race or religion is inherently unequal therefore unconstitutional.
Chief Robers declared "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" and ignored that it is not enough to merely stop illegal acts, proper penalty, remedy and consequences must be fairly set by the Judge.

If a Defense Lawyer asserts: "Your Honor, my client NO LONGER beats his wife therefore, in line with the reasoning of Chief Justice Roberts, that is all my client has to do to be within the law" he will soon be looking for a new job.

If, Chief Justice Roberts presided in the Nuremberg Trials and the Defense said "The Law only requires Auschwitz prisoners to be set free and stop segregating prisoners on the basis of race or religion. Open prison Gates and let their people go free. That is all the Law requires."
"Germany owes nothing to the Jewish People, no reparations for work in labor camps, rapings and killing. Your Honor."

To let the Nazi free to practice their demonstrated values is not real Justice.
To heal wounds and the effects of starvation is only a first step.
All the people were re-educated on the value of Freedom and Equality before the law and many were forced to work in death camps to experience horror in the ovens.
Does Chief Roberts mean to declare all this that was done was illegal and unnecessary for Justice?

The issue is the application of bad values, it is not enough to stop these acts but rhe remedy must include eradication of the values that led to the illegal actions that tormented a larger proportion of people in the USA than in Nazi Germany.
This re-education was carried out in Germany and must be carried out in the US for Justice to be Just.

"I am prepared to wait for hell to freeze over." -Adlai Stevenson, UN Ambassador.

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