The Supreme Court Monday heard arguments in a case involving the use of skin color to decide where a student attends school. The hearing comes after Michigan voters banned such types of racial preferences, following California and Washington.
The court's decision in this case may be the most significant of its term. The issue is whether Seattle and Louisville, Ky., can assign schools by race to overcome de facto housing segregation and to create diversified classrooms that reflect local racial balances.
The court might end up touching the constitutional brakes after a half century of successes in racial integration spawned by its 1954 decision in Brown v. Board of Education, a decision that outlawed intentional segregation in schools. In other words, the justices could set new limits on various government efforts to increase racial diversity in public life by intentional integration.
The decision, expected by June, will come as political momentum builds out of a citizen initiative in Michigan, passed last month, that may further roll back affirmative action in the US by making state governments colorblind in their decisions. Other states could easily see similar initiatives in 2008.
These ballot initiatives reflect a general weariness, mainly by whites, with the decades-long effort to keep giving special consideration to blacks and other minorities to correct racial inequality through unequal treatment of the races.
Even the Supreme Court justices, in individual opinions written for cases over the years, differ in how to sort out issues of race, especially in deciding when government can use discrimination to fight past discrimination. Again and again, they are asked whether a measure of unequal treatment should be allowed to overcome inequalities, or whether creating an American society of harmonious racial relations will require inharmonious means to achieve it.
The Seattle/Louisville case provides an opportunity for the court to be definitive – rather than split in its reasoning, as in past decisions. How much can the Constitution's provision on equal treatment before the law be compromised for a social good such as racially diverse classrooms?
Both of those school districts often force blacks and whites alike to attend distant schools to achieve a racial balance. The benefits and the harm of this policy are shared. Many students of all races are often denied their first choice to attend a nearby school. This "equal discrimination" is a long-term attempt to address the results of de facto segregation of housing.
As former Justice Harry Blackmun wrote in a 1978 case that allowed affirmative action in graduate schools: "To get beyond racism, we must first take account of race." (But how long must the "first take" go on?)
In contrast, the new chief justice, John Roberts, wrote in a recent dissenting opinion: "It is a sordid business, this divvying us up by race." (Yes, but racial discrimination remains sordid in the public sphere.)
The state has a compelling interest to end discrimination. But how compelling is the goal of racial diversity if that requires narrowly tailored discrimination by skin tone?
The justices must know the public is demanding a clearer answer.