To add insult to injury, Chief Justice John G. Roberts Jr.'s opinion — two sections of which had the support of only three other justices — invoked the Brown case in holding that officials in Louisville, Ky., and Seattle violated the Constitution by trying to achieve a modicum of racial balance in their schools. In his dissent, Justice John Paul Stevens rightly described Roberts' reliance on Brown as "a cruel irony."
Thursday's decision could have been worse. By refusing to sign the most objectionable sections of Roberts' opinion, Justice Anthony M. Kennedy prevented a majority of the court from endorsing the simplistic notion that using race to bring children together is just as unconstitutional as using race to keep them apart. Kennedy also made it clear that schools could promote racial integration indirectly, such as by deciding where to locate new schools. Finally, even Roberts' opinion doesn't rule out the use of race in remedying the effects of past intentional segregation, which officials in some districts — including L.A. Unified — see as the rationale for programs that take race into account in pupil assignment.
Still, Thursday was a bad day for integrated schools, partly because of Kennedy's complicity in the result. True, the justice from California refrained from endorsing some of Roberts' more doctrinaire views. But Kennedy's own Hamlet-like concurring opinion provides scarce guidance to school officials who believe, as he said he does, that racial diversity is a compelling interest but who might be afraid to act on that conviction for fear of having their efforts second-guessed by judges.
This splintering of the court makes for a sad contrast to the unanimity of the Brown decision and the 1958 case of Cooper vs. Aaron, in which the court in an opinion coauthored by all nine members reminded balky officials in Arkansas that Brown was the law of the land. On Thursday, all members of the court paid lip service to Brown but couldn't agree on what it meant.
Roberts, after declaring that "history will be heard," interpreted Brown simply as forbidding "government classification and separation on grounds of race." That gives shabbily short shrift to the larger historical process that gave rise to Brown: the marginalization and mistreatment of African Americans that had its origins in slavery. That racial divide did not suddenly close when the court ruled in Brown that "separate educational facilities are inherently unequal."
The gap persists today, including in public education. In his persuasive dissenting opinion signed by three other members of the court, Justice Stephen G. Breyer noted that the recent trend has been away from integrated schools, so that in 2002, almost 2.4 million students attended schools with a white population of less than 1%. Does the Constitution really prohibit school districts from taking modest steps to combat such racial isolation, whatever its causes?
The court once thought otherwise. As Breyer noted, as recently as 1971 it said that school districts were free to decide that "in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole." The Seattle and Louisville plans stopped well short of such measures and still were struck down. In the name of abiding by the letter of Brown, the court has dishonored its spirit.