A New Perspective on Monday’s Arguments: Take 2

This entry was written by Paul Beard, an attorney at the Pacific Legal Foundation in Sacramento; he co-authored an amicus brief in support of the petitioners that can be found here.

This op-ed is Part 2 in a two-part series of perspectives on what Monday’s arguments tell us about what the outcome of the school integration cases may be. Earlier today, we posted these thoughts by Andrew Pincus of Mayer, Brown, Rowe, and Maw, who authored an amicus brief supporting the other side.

It is all but certain that at least five Justices on the Supreme Court will vote to strike down Seattle’s and Louisville’s race-based assignment plans. Even Justice Kennedy–who, some say, has replaced Justice O’Connor as the “centrist” jurist on the Court–recalled at Monday’s hearing Grutter’s admonition that “outright racial balancing . . . is patently unconstitutional” and remarked to one of the school district’s attorneys: “[T]hat seems to be what you have here.”

What is less certain–and perhaps more interesting–is what the concurring and dissenting opinions might look like.

It is possible that the four most conservative justices will author concurring opinions calling for the overruling of the Court’s 2003 twin decisions in Grutter v. Bollinger and Gratz v. Bollinger. In those cases, the Court recognized a university’s compelling state interest in achieving viewpoint diversity through race-conscious admissions. Justices Scalia and Thomas will likely advocate for undoing the damage that Grutter/Gratz created, as may Chief Justice Roberts and Alito. That would set the stage for the Court in the near future–perhaps in a challenge to Michigan’s voter-approved Proposal 2, which is just now working its way up the state courts–to reconsider whether a diversity exception to the Equal Protection Clause should really remain with us until 2028 (as Justice O’Connor suggested).

At the liberal end of the spectrum, Justices Souter, Ginsburg, and Breyer made curious remarks at the hearing about Grutter/Gratz’s relevance to the K-12 public school assignment cases. If their exchanges with counsel are any indication, these likely dissenters are poised to advocate for yet another exception to the Equal Protection Clause, quite distinct from the one created in Grutter/Gratz. In the liberal Justices’ view, Seattle’s and Louisville’s plans are constitutional, not because Grutter/Gratz allow them, but because of a distinct and compelling interest that K-12 public schools have in racially balanced schools.

Justice Souter noted that the Court’s oft-repeated statement that racial balancing for its own sake is unconstitutional applies only in the context of affirmative action, where “some criterion which otherwise would be the appropriate criterion of selection is being displaced by a racial mix criterion.” Justice Ginsburg agreed, dismissing Grutter/Gratz’s prohibition against racial balancing on the grounds that those cases “left someone out of the picture entirely” or “out of the system.” Justice Ginsburg alluded to what can only be described as a “separate but equal” justification for race-based assignments: While the plans admittedly may bar some kids from attending a particular school because of their race, they still get assigned to an equally good school; therefore, the race discrimination is constitutional. Fortunately, Justice Ginsburg’s “separate but equal” rationale was duly rejected in Brown v. Board of Education.

While agreeing with Justices Souter and Ginsburg that Grutter/Gratz and other so-called “affirmative action” cases are inapposite, Justice Breyer based his support of the plans principally on the purpose of the Fourteenth Amendment: “[T]he primary objective of the Fourteenth Amendment was to take people who had been formerly slaves and to bring them into this society, and all of the phrases of that amendment should be interpreted with that objective in mind.” Never mind that the text and logic of the Equal Protection Clause do not limit its application to a specific racial group. And never mind that the Court has on numerous occasions made clear that all individuals–regardless of race–enjoy the same protection under that Clause.

Thankfully, we can rest assured that there will not be another wholesale carve-out of the Equal Protection Clause, as the liberal Justices want. Instead, the Court likely will reject “racial balancing” as a compelling state interest justifying discrimination and thereby help realize the goal of “achiev[ing] a system of determining admission to the public schools on a nonracial basis”–a goal it set out for the country over five decades ago in the Brown v. Board of Education cases.