Opinion: Think before you swing, Tony

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The conventional wisdom after Monday’s arguments in the U.S. Supreme Court is that the days are numbered for programs that try to ensure racial balance in public schools. That prognostication is is based largely on comments from Justice Anthony M. Kennedy, the swing justice now that Sandra Day O’Connor is retired and helping to devise an exit strategy from Iraq.

Transcripts of Monday’s arguments in cases from Seattle and Louisville (available here) tell the tale. Some of Kennedy’s comments spell trouble not only for Seattle and Louisville but also for similar efforts around the country. Many of these so-called ‘voluntary’ integration programs use specialized magnet schools to entice white (and middle-class black) parents into enrolling children who otherwise might gravitate to private schools. Typically, such programs reserve a certain percentage of seats for whites and non-whites.

Magnet programs are much less controversial than the “forced busing” for integration that caused a political firestorm in the 1970s. Even so, like the plans in Seattle and Louisville, they are anathema to some conservatives because they involve the taboo of “counting by race.”

On Monday, Kennedy, whose vote is assumed to be pivotal in a likely 5-4 decision, had caustic words for that policy. The problem with Seattle’s plan, he told the school board’s lawyer, was that “you’re characterizing each student by reason of the color of his or her skin.” It got worse for the school districts. “Outright racial balancing,’ Kennedy added, ‘is patently unconstitutional.”

Those sentiments would seem to doom racial-balance plans in public schools, since four of Kennedy’s colleagues are “color-blind” conservatives.

But wait. At another point in the argument Kennedy played with a hypo – legalese for a hypothetical situation – that indicated that he recognizes that anintent to integrate schools is different from (and less objectionable than) an intent to segregate them.

Kennedy asked the lawyer for opponents of the Seattle plan to consider a scenario in which a new school had to be built.

“There are three sites,” Kennedy said. “One of them would be all one race. Site two would be all the other race. Site three would be a diversity of races. Can the school board with the intent to have diversity, pick site number three?”

When the lawyer suggested that it would be unconstitutional for the school board to decide “what a right racial mix is,” Kennedy shot back: “So it’d have to take the three sites, all of them in the hypothetical, all of them equal, and just flip a coin…?”

The answer, obviously, is no. But if a desire to promote integration is an acceptable consideration in locating a school, how can that same motivation be impermissible, even unconstitutional, in making some pupil assignments?

As Justice David H. Souter pointed out during a similar exchange in involving racial diversity in a teaching staff, whether the means is direct or indirect, the end is racial integration. Why, Souter asked, do school boards have to “hide the ball” with subterfuges?

It’s a good question – one that Kennedy should ponder before he makes the mistake of casting his lot with the court’s “color-blind” conservatives.