David Limbaugh

Based on their consistent behavior in recent years, and specifically again in their presidential debate last Thursday, it is fair to ask whether there is any race-sensitive situation Democrats will not exploit for political purposes.

The Supreme Court's decision last week involving the public schools' use of race to achieve diversity was just too tempting to pass up. The respective candidates' reactions spawned a grotesque competition among them to see which was the best demagogue.

These candidates surely understand that the Court's ruling in Parents Involved in Community Schools v. Seattle School District No. 1 et al, did not -- let me repeat -- did not overrule the Court's landmark 1954 ruling in Brown v. Board of Education.

In Brown, the Court held that forced segregation of the races in public schools violated the equal protection clause of the Fourteenth Amendment. In the Parents case, the Supreme Court did not reverse itself on the issue of segregation, which was not even at issue.

The Parents case involved two separate school districts, in Seattle, Wash., and Jefferson County, Ky., both of which voluntarily adopted student assignment plans that allocated children to different public schools based solely on their race. The Supreme Court held that such plans violated the Fourteenth Amendment's equal protection guarantee.

Unfortunately, current Supreme Court precedent permits governmental discrimination on the basis of race in exceptional circumstances. But is only in those cases where the government can demonstrate a compelling interest and that the discrimination -- as in the use of racial classifications -- is "narrowly tailored" to achieve that compelling state interest.

Thus, the Court has permitted the use of racial classifications to remedy past discrimination, since the government is deemed to have a compelling interest in "remedying the effects of past discrimination." This is one rationale for race-based preferences in college admissions, for example.

But there was no past discrimination to remedy in either the Seattle or Kentucky school districts. The Court found that "the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation to which the Jefferson County (Kentucky) schools were previously subject has been dissolved."

The Court's ruling should please all interested in moving toward a color-blind society. As Justice Thomas noted in his concurring opinion, the school districts' approach disfavors "a color-blind interpretation of the Constitution," and "would give school boards a free hand to make decisions on the basis of race -- an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education."


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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