Last week, the Supreme Court issued a controversial ruling on two cases that dealt with public schools' intentional efforts to force integration through race-based admissions processes. In his opinion striking down the public schools' programs, Chief Justice Roberts cited Brown v. Board of Ed. as justification for a ruling in line with what he called a "colorblind" Constitution.
The NYT, Washington Post, and David Brooks are not convinced. While I think each of these sources often have a hard time separating law from politics, in this instance, I agree that the Court got it wrong, both from a legal and public policy standpoint.
Last fall, I wrote a portion of my final exam for Constitutional Law II on this very case, and my assignment was to provide a legal memo arguing which way Justice Roberts should rule (I wrote it for Professor Jeffrey Rosen, who published a short article on the case in the NYT last weekend). To prepare for the exam, I read all of the oral arguments, as well as the important precedent behind school segregation and affirmative action.
I am no fan of affirmative action as a long-term program, but in terms of law, the major affirmative action cases on record have never advocated a purely "colorblind" approach to race-based programs in schools. Instead, the issue is subject to a two-part test: does the state have a compelling interest in enacting the program, and if so, is the program narrowly tailored to further that interest? After examining case law as well as the particular facts in the case, I concluded that the public school programs passed both steps in the analysis.
First, there is obviously a compelling interest here to make public schools more diverse learning environments. This interest has consistently been upheld in all major affirmative action cases. Second, the means (considering race during the admissions process) is even more narrowly tailored for secondary eduction than higher education, because admission is not based on merit in secondary schools -- it's completely dependent on geography, student and parent preferences, and available school accommodations such as space and faculty resources.
From a policy standpoint, it also makes sense for both sides of the debate to support more integrated secondary public schools. Integrated, and more fairly balanced public schools will diminish the need for affirmative action in higher education (everyone's goal) since more minorities will have access to better schools and teachers.
Ideally, our Constitution should remain completely "colorblind," as Justice Harlan famously stated in his dissent in the infamous case Plessy v. Ferguson. But this Court has allowed the use of "benign" racial classifications in the admissions processes of higher education schools as long as compelling interests exist for doing so. There is no justifiable reason for not extending this logic to the secondary public school environment. Sorry Justice Roberts, I'm disappointed -- and I expected better.
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