School Integration Cases
The question presented to the court is, basically, whether in order to integrate a public school, school officials can select students based in part on the student’s race. Thus far, it looks like the smart money is on the Seattle and Louisville school districts losing. So it will soon not only be unconstitutional to segregate students on the basis of race but also unconstitutional to do anything about existing segregation. Interesting.
Three local systems, Decatur and Lawrence and Limestone counties, are under federal desegregation orders. Each works under plans aimed at making their schools more diverse.
Decatur Superintendent Sam Houston said the difference in Louisville and Seattle cases and the local cases are those two cities achieved “unitary status,” a term showing that they no longer operate under a federal court order.
“I’m not a lawyer,” Houston said. “But on the surface, it doesn’t appear our situations are the same.”
He’s probably right, for now. The new rule should not apply to districts that have yet to remedy their own historical de jure segregation. But what the cases will mean is that when the school achieves unitary status, it will probably have to stop doing everything it did to achieve that status. That is the situation in the Louisville system. What they are doing now is what they did when they were under a consent decree. But there is no more decree. So Scotus is about to tell them to quit what they are doing. Of course, what that holding will mean for Louisville and for the Alabama districts is an immediate return to the status quo ante: segregated schools.
In addition to the fascinating substance and odd impact, the case provides a test for orginalists:
The problem is that it’s almost impossible to justify striking down affirmative action programs in “originalist” terms, and the Supreme Court’s purportedly “originalist” judges have never bothered to try. If you look at the relevant jurisprudence of Antonin Scalia and Clarence Thomas, you’ll see ahistorical assertions that the language of the 14th Amendment prohibits all racial classifications along with powerful policy arguments against the practice, but no attempt to prove that the 14th Amendment was understood at the time of its ratification to proscribe racial classifications intended to alleviate past discrimination. And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications.
While it’s not strictly accurate to say that you can’t defend the Thomas/Scalia position on state racial classifications in “originalist” terms, you can do so only by defining constitutional principles at such a high level of abstraction that “originalism” is essentially devoid of content. If this is what originalism means, then William Brennan can be considered an originalist, Roe v. Wade is perfectly defensible in originalist terms, etc. etc.
What? You mean Scalia and Thomas are nothing more than results oriented hacks? Those are fighting words! Publius at Legal Fiction calls this “Originalism’s Ladder.”