On June 28, 2007, the Supreme Court announced it ruling on an affirmative action issue that arose in Seattle, Washington andJefferson County, Kentucky. By a 5-4 vote the Court struck down desegregation plans in both of these school districts because the plans were based purely on racial percentages and were not related to either of the two acceptable justifications for affirmative action, i.e., to remedy past racial injustices or to provide the benefits of a racially diverse student body. The Supreme Court has legitimized these two justifications for affirmative action, and the Court has stated that if a desegregation plan is narrowly tailored to accomplish one of these objectives, then the demands of the Fourteenth Amendment’s Due Process Clause are satisfied. But neither the Washington nor the Kentucky plans even attempted to articulate such a connection with its racial percentage plans.Accordingly, the plans failed to survive the strict scrutiny that the Equal Protection Clause demands of any racially-driven, governmental plan.
This decision once again pitted the five more conservative Justices with the four more liberal Justices. But this ruling is likely to evoke more criticism and commentary than the other rulings announced this week for several reasons. This is primarily so because it pertains to race, and there are a number of outspoken leaders in the nation who do not hesitate to speak out against racism whenever they can, whether or not the particular facts justify such an allegation. The dissenting Justices implicitly called for such criticism in their long and emotional argument against the majority’s opinions. But for all the protestations of the dissenters, Chief Justice Roberts and the majority correctly applied the law, and properly rejected the desegregation plans. If the dissenters’ opinion had been in the majority, this case would have stood for a significant extension and expansion of the types of racially-motivated, affirmative action plans that the Court has chosen to permit under the Equal Protection Clause. The Roberts Court wisely drew a line in the sand and took a stand against further expansion.
It should be pointed out that the Parents Involved opinions are 185 pages in length. Few people will take the time to read them, let alone to understand them. I expect that the discussion of this case will be limited primarily to name-calling and superficial treatment. The Majority will be labeled as “racists” and the dissenters will be hailed as the heroes of the down-trodden.Neither is true. The plain language of the Equal Protection Clause and the clear language of the earlier cases on affirmative action all support the ruling of the Court on this important issue.
The pages of opinions generated by the Justices in addressing this case was multiplied because of the acerbic dissent of Justice Breyer, who spent numerous pages giving his account of historical events and stating his sociological arguments for upholding the Seattle and Jefferson County plans. Justice Thomas’ concurring opinion devoted 36 pages to respond to Justice Breyer’s argument. The Chief Justice’s (the Majority) opinion, devoted thirteen pages to respond. But the Majority was not side-tracked; they got it right.