Townhall.com | George Will | July 6, 2007
WASHINGTON — For most of the 53 years since the Supreme Court’s school desegregation decision, the court, in collaboration with people who fancy themselves “progressive,” has been instructing Americans to unlearn the lesson of those decisions — the lesson that race must not be a source of government-conferred advantage or disadvantage. Last week the court began rectifying its abandonment of that premise in the name of “diversity.”
The court ruled 5-4 that Seattle, which never had school segregation, and Louisville, which did but seven years ago completed judicially mandated remedial measures, must stop using race in assigning children to schools to produce particular racial ratios in enrollments. How did we get from this: “Distinctions by race are so evil, so arbitrary and invidious that a state bound to defend the equal protection of the laws must not invoke them in any public sphere” (the NAACP’s brief, written by Thurgood Marshall, in the 1954 Brown v. Board of Education desegregation case), to this: Local public education establishments routinely taking cognizance of race in assigning children to schools?
In 1978, in the Bakke case concerning racial preferences in a medical school’s admissions, Justice Lewis Powell wrote that institutions of higher education have a First Amendment right — academic freedom — to use race as one “plus” factor when shaping their student bodies to achieve viewpoint diversity. Thus was born the “educational benefits” exception to the Constitution’s guarantee of equal protection of the laws. But that hardly justifies assigning 6-year-olds to this or that school solely because of their races.
Twenty-five years after Bakke, in 2003, the court approved the University of Michigan Law School’s use of race in admissions, because that use supposedly involves a “highly individualized, holistic review” of applicants. The court simultaneously disallowed Michigan’s undergraduate admissions plan that automatically granted preferences based solely on race — as Seattle has done in high schools and Louisville has done in grades K through 12. Samuel Alito, Antonin Scalia and Clarence Thomas joined Chief Justice John Roberts’ opinion for the court, in which Roberts said: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Anthony Kennedy, although agreeing that Seattle’s and Louisville’s practices are unconstitutional, chastised Roberts for an “all-too-unyielding” opposition to race-based programs. Yet when dissenting in the law school case, Kennedy said: “Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.”
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