The U.S. Supreme Court made history Thursday by striking down integration plans in school districts in Seattle and Louisville, Ky., that used race as a way to determine which schools students should attend. The 5-4 decision was split along liberal-conservative lines with Justice Anthony Kennedy tipping the balance in the combined opinion on Meredith v. Jefferson County Board and a similar case, Community Schools v. Seattle School District #1.
Liberals were generally dismayed by the ruling, which they feel undoes decades of race-based school integration schemes. But conservatives were pleased to hear Chief Justice John Roberts say, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Probably no one was happier to hear those words from a Supreme Court justice than Ward Connerly. The chairman of the American Civil Rights Institute, he has worked tirelessly for years to oppose or reverse laws that use racial and gender preferences in schools and workplaces. I caught up with Connerly by phone Thursday evening at his home in Sacramento, Calif.
Q: Can you sum up what these cases were about and why you are so pleased by the decision?
A: The question revolves around whether K through 12 schools could use a student's race to determine what classes that kid could attend, or which school that kid could attend. While the cases did not deal with segregation of a school, as Brown v. Board of Education did, it dealt with the whole question of whether it constitutes discrimination to use race even in the pursuit of diversity in racial balancing. The court said, "No."
Now, it's important to understand that four of the justices were in favor of absolute colorblindness -- (Samuel) Alito, (John) Roberts, (Antonin) Scalia and (Clarence) Thomas. Four of the justices were in favor of color consciousness. And one, Justice (Anthony) Kennedy, said, "I side with the colorblind people for the most part, but not absolutely."
Kennedy essentially said that "I want you to prove it to me in other venues whether race should be used in K through 12, but my mind is open to that possibility." So if someone could devise a seemingly race-neutral way to arrive at not an exclusive use of race but a race-intended outcome, Justice Kennedy was saying, "I'm going to look at that." Roberts, et al., were saying, "We don't even want to hear it."
Q: You are pleased by this decision a lot, a little bit, what?
A: I am very pleased by the decision because the majority opinion represents a complete reversal of the (Grutter v. Bollinger) decision that was handed down June 23, 2003, involving the University of Michigan (which upheld the right of universities to consider race in admissions procedures in order to achieve a diverse student body). So I'm very pleased with it in that regard. I would have been ecstatic if Justice Kennedy had said, "I favor total colorblindness." He didn't say that.
Q: What was the worst aspect of the plans that were being used to try to balance the school systems in Seattle and Louisville?
A: The worst part was that they were really selecting these kids on the basis of race. They were saying in the Louisville case that the minimum percentage of black kids in a school would be 15 percent and the maximum would be 50 percent. That was essentially a quota, and the court has always come down against quotas.
Q: Who was being hurt most by that system -- black kids, white kids, or both?
A: Both. That's why you had parents from both groups involved in the lawsuit. They were saying, "If you are a black parent, my kid has to go on an hour and 15 minute bus ride across town to go to a white school driving past his neighborhood school." White parents were saying, "Well, so does our kid." So they were both upset that their kids were being used for this ostensibly social experiment, the value of which has yet to manifest itself. There is no proof that a racially integrated school is somehow infinitely better than a school that is not racially integrated. I think most of us want racial integration, but the question is at what price should we favor the government orchestrating it for its own purposes?
Q: How common is this method of achieving racial balance?
A: I think it's fairly common. There are a lot of school districts in their magnet programs, for example, that use race to achieve this so-called diversity.
Q: Do you expect this decision to have a serious effect on other school districts?
A: Oh sure. It's going to have all kinds of effects. Our foundation, the American Civil Rights Foundation, has sued the Berkeley School District and the Los Angeles Unified School District for having programs that are similar to the ones that were thrown out. All across the country you will find programs of varying degrees that are similar to the Louisville and Seattle programs.
Q: Is there any place you'd really like to see this have a quick impact -- a place where race is being used in an especially aggressive or harmful way?
A: Wisconsin. Wisconsin is a state where in Madison they use race fairly heavily. We're pretty upset about it, but there's not much we can do. It's not a state that allows citizen initiatives, so we can't put anything on the ballot. Yet these policies continue -- up until now -- without any hope that they can be overturned. With this decision, now there is a new tool in the toolbox to throw them out.
Q: Would you call this a "landmark" decision?
A: Yeah, I would, coming as it does on the heels of the decision on June 23 of 2003, where the court by a 5-4 margin said that race could be used by higher education to achieve diversity. This decision is 180 degrees from that. Remember that Sandra Day O'Connor said in 2003 that she was voting in favor of the use of race for diversity purposes but she hoped that within 25 years this use would no longer be necessary. Everyone who follows this issue thought we were consigned to use race for another 25 years. To have it thrown out, just four years later, even though it's only in K through 12, is really pretty significant.
Q: So this is a real serious threat to the idea of integrating schools by using race?
A: Yeah. I think it is. The fact that we stumble over this a little bit as we describe it kind of bespeaks what it is all about. There is no question that five years ago or 10 years ago a decision like this would not have occurred. The court always makes these decisions taking into account the social context. If you look at the decision that was handed down in 2003, and the 1978 Bakke decision (University of California Regents v. Bakke), in every instance the court kind of held its nose and said we know this is not the ideal way the government should conduct its business -- by classifying its citizens on the basis of race. In the case of the 2003 decision, Sandra Day O'Connor didn't say "affirmative action," she said "race preferences." To have the court now hand down this decision kind of says that the court recognizes that times have changed. It's no longer justifiable to use race the way we've been using it. It's a very, very significant decision.
Q: Here in the City of Pittsburgh's school district, one school is 99 percent black. What should a district like Pittsburgh do when it's confronted with that kind of racial imbalance?
A: First of all, the district should recognize that its responsibility is to educate its kids, regardless of the skin color or the quote "race" of those kids. Then they need to understand that there is no demonstrable evidence that the quality of education is directly linked; no matter what we've said over the years, there is no demonstrable evidence that there is a correlation between academic achievement and the predominant color of the school. Given those considerations, they should do everything they need to do to make sure that the schools have good teachers, a good principal, that they are providing a good product -- and not worry about racial integration. That's where we've gone wrong, I think. We've been so preoccupied with racial integration that you don't hear as much about academic quality as you do about racial integration. The NAACP and all the others, all they talk about is, "Gee, this is a segregated school." So what? So is Morehouse. So is Howard. So are a lot of other historically black colleges. But they're turning out a good product.
Q: What's the next thing you'd like to see the Supreme Court fix on the issue of race and schools?
A: Overturn the Grutter decision. That's the decision that involved the University of Michigan Law School and undergraduate school in 2003, where the court said that using race to achieve diversity is constitutional because diversity is a compelling situation. Today, Justice Roberts said the term "diversity" -- we don't even know what it means. It's "amorphous," he said.
Q: It would take somebody to go to court to challenge the Grutter decision, wouldn't it?
A: Yes. You have to understand that those who ruled on this decision today could be divided into three categories. The four who were in the minority, they said that race consciousness is always justifiable. The four who were part of the majority -- Alito, Roberts, Thomas and Scalia -- said under no circumstances should race be used -- that the Constitution is colorblind. The third camp -- which was one person, Justice Kennedy -- said, "Well, I would prefer that you use race-neutral measures, but I'm not where the other four are. I'm ruling with them on the Louisville and Seattle cases, but I'm not where they are on colorblindness. If you can bring to me a plan that shows you tried racial neutrality, and you don't classify individuals, and you don't assign them on the basis of their individual race, but rather you craft some broad reaching plan, I can entertain that."
Q: It sounds like the key from your point of view is to replace Justice Kennedy.
A: I would have some very good nights sleep if one of the other four happened to be replaced. Kennedy is not going anywhere. But if one of the other four happened to resign, then I think that that would provide an opportunity. I'm not sure if Bush could deliver, because the Senate is in Democrat hands and they would try to stop no matter whom he appointed. But if we could get the fifth vote, then that would slam the door on racial preferences. The other thing is for us to continue pursuing these initiatives at the ballot box to build this national consensus which the court has to take a note of -- that race should not be used.