School Race Plans

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Supreme Court Rejects School Race Plans

Thursday June 28, 2007 10:16 PM


AP Photo KYER105, WATW101, KYER106, WATW202

By MARK SHERMAN

Associated Press Writer

WASHINGTON (AP) - A half-century after the Supreme Court outlawed segregated schools, sharply divided justices clamped new limits Thursday on local school efforts to make sure children of different races share classrooms.

The court voted 5-4 to strike down school integration plans in Louisville, Ky., and Seattle, a decision that imperiled similar plans that hundreds of cities and counties use voluntarily to integrate their schools.

The ruling does not affect several hundred other public school districts that remain under federal court order to desegregate.

Justices disagreed bluntly with each other in 169 pages of written opinions on whether the decision supports or betrays the landmark Brown v. Board of Education ruling that led to the end of state-sponsored school segregation in the United States.

The 5-4 decision, the 24th such split this term, displayed the new dominance of the court's aggressive conservative majority. The four liberal justices dissented.

Chief Justice John Roberts asserted in his majority opinion that by classifying students by race, the school districts are perpetuating the unequal treatment the Brown decision outlawed. ``The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,'' Roberts said.

Citing Brown to rule against integration was ``a cruel irony,'' responded Justice John Paul Stevens in his dissent.

Crucially for school districts seeking guidance, Justice Anthony Kennedy went along with the court's four most conservative members in rejecting the Louisville and Seattle plans but also said race may sometimes be a component of school efforts to achieve diversity.

To the extent that Roberts' opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, ``I disagree with that reasoning.''

``A district may consider it a compelling interest to achieve a diverse student population,'' Kennedy said. ``Race may be one component of that diversity.''

Kennedy seemed to suggest that race could be a factor in deciding where to build a new school or how to draw school attendance boundaries.

Justice Stephen Breyer, in a pointed dissent he read in the courtroom, said those measures have had only limited success in promoting integration.

Breyer, joined by the other liberals on the court, said Roberts' opinion undermined the promise of integrated schools that the court laid out 53 years ago in the Brown decision. ``To invalidate the plans under review is to threaten the promise of Brown,'' he said.

On the other side, Justice Clarence Thomas, the court's only black member, wrote a separate opinion endorsing the ruling and taking issue with the dissenters' view of the Brown case.

``What was wrong in 1954 cannot be right today,'' he said. ``The plans before us base school assignment decisions on students' race. Because 'our Constitution is colorblind and neither knows nor tolerates classes among citizens,' such race-based decisionmaking is unconstitutional.''

Civil rights leaders, trying to make the best of the decision, said Kennedy's opinion, when combined with the four dissenters, showed that a majority of the justices support the continuing use of race-conscious measures to integrate public schools.

``We got rained on today, but there's a silver lining,'' said Theodore Shaw, president of the NAACP Legal Defense and Education Fund.

Dennis Parker, director of the American Civil Liberties Union's Racial Justice Program, said, ``Even so, the rejection of the Seattle and Louisville school plans represents a significant step backwards in a nation where schools are becoming increasingly segregated by race and ethnicity.''

School districts that have plans that resemble the ones struck down by the court are expected to look for other ways to make their schools racially balanced without specifically relying on race. One possibility is using family income since blacks are more likely than whites to be poor.

The ruling also could unsettle the more than 2,000 magnet schools that educate 2 million children since many were created under desegregation plans, said UCLA education expert Gary Orfield.

``These are some of the only integrated things in a lot of our inner cities,'' Orfield said. ``It's one of the only ways to keep middle-class kids involved in big-city school systems.''

The Jefferson County and Seattle school systems, whose integration plans were the subjects of Thursday's decisions, employ slightly different methods of taking students' race into account when determining which schools they will attend.

Federal appeals courts had upheld both plans after some parents sued. The Bush administration took the parents' side, arguing that racial diversity is a noble goal but can be sought only through race-neutral means.

The Louisville case grew out of complaints from several parents whose children were not allowed to attend the schools of their choice. Crystal Meredith, a white, single mother, sued after the school system turned down a request to transfer her 5-year-old son Joshua Ryan McDonald, to a school closer to home.

Louisville's schools spent 25 years under a court order to eliminate the effects of state-sponsored segregation. After a federal judge freed the Jefferson County, Ky., school board, which encompasses Louisville, from his supervision, the board decided to keep much of the court-ordered plan in place to prevent schools from re-segregating.

Louisville Mayor Jerry Abramson said he was disappointed with the ruling because his city's system had provided ``a quality education for all students and broken down racial barriers'' for 30 years.

Deborah Stallworth, a Louisville parent who successfully sued to end court-ordered busing in 2000, said: ``We send children to school to be educated, not as a social experiment.''

The Seattle school district said it used race as a factor only at the end of a lengthy process in allocating students among the city's high schools. Seattle suspended its program after parents sued.

Kathleen Brose, mother of a white Seattle student who sued the district, said she felt vindicated by the decision. ``We've never said we didn't like diversity,'' she said. ``We're against discrimination. ... There's just other things they can do without discriminating.''

The opinion was the first on the divisive issue since 2003, when a 5-4 ruling upheld limited consideration of race in college admissions to attain a diverse student body.

Since then, Justice Sandra Day O'Connor, who approved of the limited use of race, retired. Her replacement, Justice Samuel Alito was in the majority that struck down the school system plans in Kentucky and Washington.

Thursday's decision left in place the 2003 ruling.

The cases are Parents Involved in Community Schools v. Seattle School District No. 1, 05-908, and Meredith v. Jefferson County Board of Education, 05-915.

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Cliff Sloan: In Praise of John Paul Stevens - Newsweek National News - MSNBC.com
In Praise of John Paul Stevens
Our columnist, a former clerk for Stevens, says the Supreme Court justice has had a profound impact on every major issue of our time.
By Cliff Sloan
Newsweek
Updated: 8:34 p.m. ET May 6, 2005
May 5 - Amid rampant speculation about the future of the Supreme Court, the nation’s most-influential and least-appreciated justice, John Paul Stevens, quietly turned 85 last month.

After nearly 30 years on the court, John Paul Stevens remains one of the country’s least-known justices. With his bow-tied, Midwestern demeanor and perpetual air of genial bemusement, he is the quintessential nice guy, the sort you’d bump into on an airplane or at the corner store. He loves to tell of moving to Washington, and, on a bank application, listing “Justice” as his occupation. The skeptical bank clerk replied, “OK, last week, I had a guy who said ‘Peace’.”

Although few may recognize him, Stevens is one of the nation’s great justices. His contributions to American law and society are enormous. On every major issue of our time, his voice and mind have had a profound impact. Frequently starting from the perch of a lonely dissent or quirky concurrence, his analyses often have won the day, and, even when they have not, they frequently have framed the terms of debate.

As a former law clerk to Justice Stevens, I am far from impartial. But a dispassionate appraisal of Stevens’s record on the court unmistakably demonstrates the quiet, overwhelming dominance he has displayed. There is a lot of talk about the Rehnquist Court—and sometimes even of the O’Connor Court because of the swing vote employed by Justice Sandra Day O’Connor. But what we actually have seen, on many issues, is the emergence of the Stevens Court.

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John Paul Stevens
(b. Chicago, Ill., 20 Apr. 1920), associate justice, 1975¨C. John Paul Stevens has a deserved reputation for independence and moderation, for being a jurist who is determined to reach the right result for the right reason. Born to a prominent Hyde Park family, he graduated Phi Beta Kappa from the University of Chicago in 1941. During World War II, Stevens served in the Navy and earned a Bronze Star as a code©\breaker. At Northwestern University he was editor©\in©\chief of the law review and graduated in 1947 with the highest grades in the law school's history. He credits his law professors for his skepticism about legal abstractions and doctrines that either oversimplify complex issues or avoid the difficult work of judging actual cases or controversies. His understanding of judicial review was influenced by Supreme Court Justice Wiley Rutledge, for whom he clerked in 1947. That year in chambers began to form his judicial philosophy: courts always should zealously and steadfastly protect individual liberty against a background of respect for the elected branches of government, which are immediately responsible and accountable to the people.

Admitted to law practice in Illinois in 1949, Stevens specialized in antitrust law with prominent law firms and also taught the subject as an adjunct at both Northwestern and the University of Chicago law schools. He was Associate Counsel to the Subcommittee on the Study of Monopoly Power of the Judiciary Committee of the House of Representatives, 1951¨C1952, and a member of the Attorney General's National Committee to Study Antitrust Law, 1953¨C1955. He was active in the bar, serving as Second Vice President of the Chicago Bar Association and as pro bono publico Counsel to the Special Commission of the Illinois Supreme Court that resulted in the resignation of two corrupt state supreme court justices in 1969. From 1970 to 1975, Stevens served on the United States Court of Appeals for the Seventh Circuit.

When Justice Douglas's retirement gave President Gerald Ford his only opportunity to appoint a Supreme Court Justice, he hoped his nomination of a moderate, reputable, and experienced judge who earned the American Bar Association's highest rating would help restore public confidence in government in the aftermath of the Watergate scandals. Hailed as a ¡°lawyer's lawyer¡± and a ¡°judge's judge,¡± Stevens was confirmed as the 101st Supreme Court justice by a Senate vote of 98 to 0 and took his oath on 19 December 1975.

At his Senate hearing, Stevens expressed a sense of judicial duty and a personal need to write a dissent when he disagrees with a decision and to write a separate concurring opinion when he does not agree with the reasoning of the majority. He believes doing so assures litigants that the Court has fully appraised their arguments and provides courts in future cases the benefit of diverse points of view. Consequently, he routinely publishes significantly more dissents and concurring opinions than any of his colleagues. Justice Stevens has a bespectacled©\and©\bow©\tied Walter Mitty appearance. He is always well©\prepared, thoughtful, and courteous to counsel. His questions go to the heart of the case and he seems genuinely interested in the answer. He pursues his internal intellectual life in the idiosyncratic, sometimes eccentric, legal analyses revealed in his opinions and in his off©\the©\bench lectures and writings. Justice Stevens's insights not infrequently get more attention from scholars than agreement from his colleagues. He is a lucid and skilled wordsmith whose hands©\on style is often quite literary and sometimes trenchant, as might be expected from a college English major who knows his own mind and who comes at the issues from a different perspective. He is someone who has a life beyond his work, whose interests include flying airplanes, tournament bridge, golf, tennis, reading, and travel. Affable and unassuming in person, he is popular and respected by his peers and in his profession.

When he was first appointed to the Burger Court, Attorney General Levi described the new nominee as ¡°a moderate conservative.¡± But Justice Stevens has responded to an increasingly conservative Rehnquist Court and court©\watchers currently label him as a ¡°liberal.¡± As the most senior associate justice, he assigns the writing of opinions in cases when the chief justice is in the minority, a prerogative he has used to some advantage. Stevens was prescient, at his confirmation hearing, when he testified, ¡°I would not label myself, Senator.¡± He is not habitually liberal or conservative. Rather, he has a pragmatic, independent streak to delve into the interplay of the facts of the case and the constitutional values at stake.

Early on, Justice Stevens demonstrated his fundamental skepticism of Byzantine, judge©\made doctrines, in a concurring opinion disapproving of the Court's three©\tiered interpretation of the Fourteenth Amendment: ¡°There is only one Equal Protection Clause. ¡­¡± (Craig v. Boren, 1976). He inquires whether the challenged government classification is reasonable, considering the public purpose of the law, who is being disadvantaged, and how much harm is being suffered.

Justice Stevens demonstrates a concern for the least powerful in society. For example, he often dissents to argue for affording prisoners greater rights (Hudson v. Palmer, 1984). He is sensitive to governmental discrimination against discrete and insular minorities of all kinds. He is skeptical of any claim of government immunity or sovereign immunity that would defeat an individual's remedy. He can usually be counted on to rule in favor of the defendant and against the government in a criminal case brought under one of the provisions of the Fourth, Fifth, or Sixth Amendments. His jurisdictional theory is that the Supreme Court should rarely if ever grant review on the petition of the government whenever the lower court has ruled in favor of the individual. On the headline issues during his tenure¡ªthe death penalty, abortion, right to die, and homosexual rights¡ªhe goes right down the line to vote in favor of individual liberty. Justice Stevens's views on affirmative action have evolved. Dissenting in Fullilove v. Klutznick (1980), he would have sent the federal statute back for a second legislative look at a program that favored minority©\owned businesses in awarding government contracts because Congress had not carefully enacted the measure. But in Adarand Constructors, Inc. v. Pena (1995) he complained that the majority did not go far enough in approving such programs He assigned and joined Justice Sandra Day O'Connor's landmark majority opinion declaring the constitutionality of race©\based university admissions (Grutter v. Bollinger, 2003).

In First Amendment cases, Justice Stevens rejects the Supreme Court's standard definitional analysis that distinguishes between categories of speech that are protected and other categories, like obscenity and fighting words, that are not protected. Instead, he has argued for a sliding scale so that more valuable speech is more protected than less valuable speech, and the Supreme Court has moved toward his approach. For example, FCC v. Pacifica Foundation (1978) upheld a restriction on a radio broadcast of a program that was not appropriate for children. He can usually be counted on to protect speech, but he vigorously dissented in the case that upheld the right to burn the American flag (Texas v. Johnson, 1989). A devout separationist, he was so concerned about religious strife and democracy that he dissented against the approval of school voucher programs in Zelman v. Simmons©\Harris (2002).

Justice Stevens's federalism decisions are mixed. He led the Court to a ruling that a state did not have the power to impose term limits on its representatives and senators in the Congress in U.S. Term Limits, Inc. v. Thornton (1995). He stridently dissented from the controversial decision in Bush v. Gore (2000) that stopped the Florida recount and determined the outcome of the 2000 presidential election.

Justice Stevens's views of separation of powers are nuanced. In Clinton v. Jones (1997), he wrote the opinion that allowed a private civil law suit against the president based on allegations of sexual misconduct prior to his term, and wrote: ¡°As for the case at hand ¡­ it appears to us highly unlikely to occupy any substantial amount of petitioner's time¡± (p. 702). In hindsight, that decision led to the crisis of the Clinton impeachment. His unanimous landmark opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) declared that courts should defer to a federal agency's interpretation of the statute the agency is responsible for administering, in effect, deferring first to the agency's expertise and ultimately to Congress's supervisory law©\making prerogative.

Justice Stevens also has compiled a mixed record with respect to economic issues. He has usually rejected arguments that stringent land use regulations constitute a regulatory taking of property. Yet in BMW of North America, Inc. v. Gore (1996) Stevens, writing for the Court, concluded that a state punitive damage award was so grossly excessive as to violate the due process clause of the Fourteenth Amendment.

In a speech, Justice Stevens once revealingly described the Constitution as ¡°a mysterious document.¡± Over three decades, this worthy jurist has partaken of that mystery and reveled in it case by case.

Answers.Com Article

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In the News - Full Article, In the News, News and Events, School of Law, Northwestern University
JUSTICE STEVENS GIVES HISTORY LESSON ON 'ORIGINAL INTENT'

By: Jerry Crimmins

U.S. Supreme Court Justice John Paul Stevens in a speech here Thursday explained his views on the "original intent" theory of constitutional interpretation.

He also spoke against a proposed constitutional amendment to ban desecration of the U.S. flag.

Regarding original intent, Stevens cited arguments both for and against the approach, which maintains that judges should seek to uphold what the drafters of the Constitution intended when they wrote it.

But he ultimately asked the audience to remember the disastrous Charge of the Light Brigade that Stevens said resulted from failure to understand the original intent of a military order.

The justice spoke at the 7th Annual Justice John Paul Stevens Awards Luncheon in The Standard Club to a packed room of 500 guests. The event was sponsored by the Chicago Bar Foundation, The Chicago Bar Association and Stevens' former law clerks.

The Stevens awards recipients this year were Illinois Supreme Court Justice Anne M. Burke, Chicago lawyer Donald Hubert of Hubert & Fowler P.C., Chief U.S. District Judge Charles P. Kocoras and Professor Thomas M. Morsch of Northwestern University School of Law.

Stevens spoke before the awards were presented.

"I plan to comment on some of my summer reading; also a poem I knew by heart in high school, and on a proposed constitutional amendment," Stevens said.

His summer reading included scholarly articles on judicial restraint and original intent.

He said one author wrote that the U.S. Supreme Court in Dred Scott v. Sandford, 60 U.S. 393 (1856), "faithfully applied the original intent of the Framers."

(In that decision, the court held that slaves in America were not intended to be "part of the people" whose rights were guaranteed in the Constitution and that slaves were "regarded as beings of an inferior order.")

Another author Stevens recently read had argued that the original intent approach to constitutional interpretation would have led the Supreme Court to a different outcome in its landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954).

In that decision, the justices outlawed racial segregation in public schools.

A third author Stevens mentioned was the Northwestern law professor Steven G. Calabresi, who recently wrote of a situation where the president and Supreme Court came to opposite conclusions on the original intent of the Framers.

Calabresi wrote that the U.S. Supreme Court in 1816 in McCulloch v. Maryland ruled that the government's creation of the Bank of the United States was lawful.

But when Congress tried to renew the bank in 1832, Calabresi noted that President Andrew Jackson vetoed the national bank as unconstitutional.

These 18th century deliberations, Stevens said, "illustrate one reason why original intent won't always assist justices in deciding constitutional issues."

"My own view about original intent," Stevens continued, "is that it's just as relevant in constitutional cases as legislative history" in other cases.

"A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent," Stevens said.

"In truly difficult cases" sometimes the text is not clear, he continued.

Stevens then recited lines from a poem he knew by heart in high school. The poem was "The Charge of the Light Brigade" by Alfred Lord Tennyson.

It recalls the charge made by the Light Brigade of British cavalry at the Battle of Balaclava in 1854 in the Crimean War. The Light Brigade charged into massed Russian cannons and took heavy casualties.

The poem says in part:

"Cannon to the right of them,

"Cannon to the left of them,

"Cannon in front of them."

Stevens explained that the Light Brigade, commanded by the Earl of Cardigan, was in a valley (Tennyson's "valley of death").

The army commander, Lord Raglan, who stood above the valley, sent an order that seemingly directed Cardigan to attack to his front.

But Raglan had actually meant that the Light Brigade should move to the left to attack another enemy position that Raglan had observed.

The Light Brigade down in the valley could not see that other enemy position, Stevens said. So the Earl of Cardigan misunderstood the order, and the Light Brigade charged straight ahead into disaster.

Stevens summed up by saying, "The actual battle teaches us two lessons: Text does not always convey the meaning the author intended; (and) knowledge of the author's intent is necessary."

Regarding the proposed Constitutional amendment that would make it a crime to burn the American flag, Stevens noted that he wrote a strong dissent in 1989 when the majority of the U.S. Supreme Court concluded the First Amendment permitted burning of the American flag. Texas v. Johnson, No. 88-1855.

A Supreme Court decision from 1974 had also allowed burning of the flag. Spence v. Washington, 418 U.S. 405.

Stevens said he was very proud of his dissent in the 1989 case.

But "after thinking a good deal about the issue, I have concluded it would be unwise to reverse those decisions."

"What once was a courageous act of defiance ... is now perfectly lawful," Stevens said, and nobody burns the American flag any more.

Making it legal "seems to have solved the problem," he concluded. Today, he added, one could not burn a flag without conveying a message of freedom.

In presenting the Stevens Awards to Burke, Hubert, Kocoras and Morsch, the master of ceremonies, Kimball R. Anderson of Winston & Strawn LLP, said those four are "the deans of our profession" and "our favorite lawyers."