La Shawn Barber

[B]eware of elites bearing racial theories. – Justice Clarence Thomas

Last week the U.S. Supreme Court held that schools in Jefferson County, Kentucky, and Seattle, Washington, could not use race as a tiebreaker when assigning students.

(I live-blogged the Democratic presidential debate from Howard University last Thursday. When Hillary Clinton mentioned the decision, I applauded without hesitation or embarrassment, even while sitting in a large room of liberals.)

Unfortunately, the court didn’t outlaw the use of race altogether. Racial classifications are permissible in narrow circumstances to remedy “the effects of past intentional discrimination,” which is a “compelling interest under the strict scrutiny test.”

Seattle Public Schools failed to meet this burden because it was never segregated by law, and Jefferson County’s desegregation order was dissolved in 2000.

The court also distinguished the present cases from Grutter v. Bollinger, where it held that diversity in higher education was a compelling enough interest to justify using race as a factor in law school admissions. The court contended that in “the present cases, by contrast, race is not considered as part of a broader effort to achieve, ‘exposure to widely diverse people, cultures, ideas, and viewpoints’…it is the factor.” (Download the 185-page opinion in PDF.)

Justice Clarence Thomas’s concurring opinion stands out for its undercurrent of “black pride” and elegant rejection of white paternalism. As repugnant as it may be to some people, “[r]acial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference,” he writes. Remedying the effects of Jim Crow-era segregation “is a one-time process involving the redress of a discrete legal injury inflicted by an identified entity,” not a blank check to assign students to schools by race to achieve an arbitrary racial balance.

By the way, those who cite Brown v. Board of Education to support race preferences for the sake of diversity have got it dead wrong. That case ended government-mandated racial discrimination in schools; it had nothing to do with so-called diversity.

La Shawn Barber

Freelance writer La Shawn Barber blogs at the American Civil Rights Institute blog.