Associate Justice John Paul Stevens issued a succinct and well-targeted dissent against the Supreme Court’s majority opinion in Parents Involved in Community Schools v. Seattle School District No. 1.
Justice Stevens essentially noticed that Chief Justice John Roberts was removing the context of the U.S. practice of segregation in education, which was truly practiced against Black students.
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.” 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.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.
Chief Justice Roberts wrote his opinion as if any student would be subject to second-class treatment. In the history of the United States, the treatment of those considered White as second-class citizens has never occurred.
Colorblindness would have become the governing principle were it not for Justice Anthony Kennedy’s equivocal opinion realizing the existence of racial discrimination and the impracticality of colorblindness.
Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.
The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U. S. 537, 559 (1896). The Court’s decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, 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.
Nevertheless, Justice Kennedy makes it difficult for the government to address race because classifying people by race is wrong.
In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306 (2003); id., at 387-388 (Kennedy, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.
Justice Kennedy’s analysis is insufficient because Whites are not only the majority racial group in both Seattle, WA and Louisville KY, but also a majority of citizens in the United States. So it is extremely unlikely that Whites will be detrimentally affected by racial classifications administered by the White majority [Note: click here to see census charts (at the end of the post).]
I am glad that Associate Justices Stevens, Breyer, Souter, and Ginsburg offered spirited dissents to the majority and plurality opinion.