Last week’s Supreme Court decision on school segregation, Parents Involved in Community Schools v. Seattle School District, generated a firestorm of blogosphere blowback, not least here at Pop and Politics. On the day of the decision, P+P characterized it as a crazy retreat from the iconic 1954 ruling in Brown v Board of Education and asked, “Are we really ready to get back to an era of legal segregation as well?”

Of course, nothing of the sort is going to happen. The ruling was a bad one that will make it trickier to racially integrate schools, but P+P’s description of the ruling’s impact and justification was, as readers noted, way off the mark. Pundits and law professors are calling the recently concluded Supreme Court term a “generational shift” to the right, but it’s clearly not a multi-generational shift. The bad old pre-Brown days of “separate but equal” are not coming back, and even today I’m confident we’d get a 9-0 court vote in favor of Brown’s central proposition that segregation, where permitted or required by law, is a denial of the equal protection of the laws.

What’s at stake is the line of cases that lawyers like to call the “progeny” of Brown: all the controversies over quotas, affirmative action, racial set-asides, etc. On this score, the new Roberts court is clearly tightening the screws, with a new emphasis on avoiding any hint of discrimination in government action, even when benignly intended to remedy past wrongs. The Parents Involved case was about what voluntary race-conscious steps government may take to advance racial integration, even where unconstitutional segregation does not exist.

In addition to falling prey to alarmist nonsense about the impact of this case, P+P mischaracterized the motivation of the Court’s ruling:

We don’t need to desegregate the schools anymore because we’re not racists anymore! Any inequality based on race in America is a fading artifact of the sins of our past. We’re just not like that anymore. Inequality no longer really has anything to do with race. So let’s not continue to introduce skin color into the curriculum of our schools. The young people, they’re not like that today. Lets let the kids be kids.

Here P+P falls into the Ann Coulter School of Argument: “I’m angry about this decision, so I’ll just say anything that makes those crusty old Justices look mean and stupid!” In fact, while our social argument about racial preferences today often hinges on whether we’ve moved past racism, this isn’t the argument the Court was having.

There’s nothing in the Roberts, Thomas or Kennedy opinions that can be construed as justifying this decision because “we’re not racists anymore.” In fact, the majority argues that race-based classification can perpetuate existing racial animosities, and Thomas’s concurring opinion, far from suggesting that “the young people, they’re not like that today,” points to some sociological research that indicates that “students of different races within the same school may separate themselves socially.”

P+P mocked the Justices for believing they were making a “hopeful move that positively reflects the hard-earned progress we’ve made as a society toward colorblindness.” But Roberts and Thomas emphasized that colorblindness is a constitutional imperative, not subject to “hopeful moves” in step with social progress. A tart Thomas footnote took dissenter Breyer to task for just such hopefulness: “Regardless of what Justice Breyer’s goals might be, this Court does not sit to ‘create a society that includes all Americans’ or to solve the problems of ‘troubled inner-city schooling.’ We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial imbalance, I will not defer to legislative majorities where the Constitution forbids it.”

The argument, then, isn’t about whether racism exists, but about what government can do to remedy its effects, and specifically, whether government remedies can employ racial classifications. Whenever the government employs a classification scheme that potentially affects equality under the 14th Amendment, the Court attempts a balancing act to weigh the importance of the government’s goal against the harm done by the very act of classification. Sometimes the Court just requires the government to be reasonable, such as when it applies a “rational basis” test to government classification by socioeconomic factors. But when “suspect classifications” like race, national origin and religion are at stake, the Justices sharpen their pens and apply something they call “strict scrutiny.”

To pass strict scrutiny, the use of racial classification must be narrowly tailored to achieve a compelling government interest. Interpreting these terms of art is what the argument is all about: Should we apply the same “strict scrutiny” standard to “benign” as well as “invidious” discrimination? Is advancing general societal integration (as opposed to stamping out illegal discrimination) a compelling state interest? If so, were the Louisville and Seattle school programs “narrowly tailored” to accomplish that objective?

Bush promised us that his Court nominees would be fetishists of “original intent” “strict construction” and “judicial restraint” (offer not valid for Jeb’s disputed election in 2012), and he appears to have delivered in spades. It’s a colorblind Constitution for the new Court majority, come hell or high water, and they appear to take some pleasure in hoisting the liberals on Brown’s petard: “What was wrong in 1954 cannot be right today” and “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Walter Dellinger and Dahlia Lithwick demolish the majority’s reasoning over at Slate, as P+P points out, but now with Kennedy replacing O’Connor as the swing vote, we appear to be stuck with this pinched view of the Constitution and equal protection. The glimmer of hope rests in Kennedy’s concurring opinion, either nuanced or muddled, which suggests he might be willing to countenance the use of racially conscious remedies where they are more narrowly tailored and do not rely on simple classification of individuals based on race. The internet is already awash with discussions of ways to move forward, such as by using income as a proxy for race in school assignment.

Breyer, in dissent, argued that the majority screwed up its analysis of the distinction between what the Constitution requires of government to avoid invidious discrimination and what it permits government to do to advance racial integration. He also articulated the liberal view that we should not be limited to constipated notions of “original intent”: “The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time.”

When Roberts and Alito were nominated to the Court, they were criticized for siding with the powerful over the weak, the rich over the poor, the connected over the cast-aside. Senator Barack Obama’s explanation for his opposition to Roberts was typical of the criticisms that have now proved so right:

The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General’s Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

The problem with Roberts, Scalia and the Gang isn’t that they think we’re all post-racist, but that they don’t seem to care much either way. Practical considerations don’t carry much weight when they contemplate the awesome majesty of the law in its logical perfection.

The decision is available in elegant pdf format and all its 185-page glory here.

——
Foster Landis has a law degree from USC. P+P is grateful for his putting us straight, because some kinds of hurt is the kinds of hurt that feels good! Thanks to all the readers who likewise refused to give us a pass.