The racial composition of the student body at Cityview, where my BBBS friend attends the seventh grade, is a result of housing patterns in Minneapolis. Hardly any white kids are enrolled because, in the north-side neighborhood where the school is located, hardly any white people live. Other cities have adopted plans, now struck down by the Supreme Court, to avoid precisely this outcome.
For example, in Louisville, where 34% of the student poplulation is black, school districts were grouped into various "clusters," the boundaries of which were drawn in a way to encompass different neighborhoods. Parents were then invited to apply for admission to any elementary school within the cluster that included their own district. In evaluating these applications, officials took race into account to the extent necessary to ensure that no school's student body would have less than 15%, or more than 50%, African-American children.
In the background of such a scheme lurks the epoch-making decision in Brown, the case from 1954 in which the Court held, by unanimous vote, that separate facilities and accommodations were, in their very nature, unequal, and that the Constitution therefore required that they be integrated. Dworkin's analysis of the decision banning integration efforts like the one adopted in Louisville really begins with the observation that, to the children suffering the harm caused by racially isolated schools, it makes no difference whether the segregation is of the de jure or de facto variety. The Court had held, in 1954, that separate cannot be equal. That is still theoretically true, but the Court has now held that, when students within the same district are in fact separated by race into different school buildings, thereby limiting opportunity, remedies are not permitted.
The dissent written by Justice Breyer--all the opinions filed in the case may be examined here--marshaled evidence from social science research indicating that racially isolated schools foster, among blacks and whites alike, race consciousness and antagonism. Moreover, black students perform better in schools that are neither nearly all-black nor nearly all-white. To Dworkin's dismay, the majority opinion, written by Chief Justice Roberts, acknowledged the possible harm caused by racially isolated schools only along the way to dismissing it completely as relevant to the case. What is important in the majority opinion is not what happens to children in school and life but, rather, the vocabulary and apparatus previously deployed by the Court in similar cases, which he now applies to the case at hand in a mechanical fashion guaranteed to arrive at the desired conclusion.
Roberts wrote, for instance, that government has a "compelling interest" that might justify "race-conscious plans" only in certain extreme situations--as a remedy, say, for past discrimination that was enforced at law and is a cause of persisting racial imbalances. But neither Seattle, which had never officially segregated students, nor Louisville, which had been found to have cured its discriminatory past, met this test. So the school districts of these cities could not claim a compelling interest in taking account of race in school admissions practices on this ground--or, inevitably, on any other, either.
Dworkin I think scores a takedown on this point of contention, and I shall leave off my summary of his argument to allow him to speak for himself:
It is puzzling, however, why it should make a difference to the constitutional permissibility of the plans whether the conceded racial imbalances they address were the consequence of official segregation or equally effective patterns of private discrimination. The harm of ghetto education both to students and to the community as a whole is equally grave in both cases, and those who benefit from integration plans are no more entitled to that benefit in one case than the other.
He proceeds to observe that Breyer had, in his dissent, noted that the majority's distinction between districts that had or hadn't in the past been ordered to desegregate was often manifestly trivial, "a matter of historical accident." Dworkin adds:
Seattle had been sued and might well have been ordered to integrate if it had not secured a settlement by promising to adopt an integration plan itself. It seems preposterous that a plan that would have been constitutional if adopted a day after a court declaration should be unconstitutional because it was adopted to forestall that declaration.
The legal framework--"strict scrutiny," "compelling interest," "narrow tailoring"--relied upon by Roberts had been developed, principally by Justice O'Connor, who retired in 2006 and was replaced by Alito, to "smoke out" racial classifications that amount to mere spoils systems. When citizens are classified by race, the purpose in O'Connor's view may or may not be benign, and her jurisprudence undertook to discover, case by case, on which side of the line the particular racial classification under consideration fell. Thus in 1989 she found unconsitutional the policy of Richmond, Virginia, to reserve 30% of city construction contracts for black firms but held, in 2003, that the race-conscious admissions policies of the law school at the University of Michigan were legitimate and permissible.
The Court's majority, argues Dworkin, has put O'Connor's vocabulary at the service of a very different view. Roberts and the conservative phalanx blind themselves to crucial distinctions in order to hold, absolutely, that despite the country's sorry racial history and current sociological "facts on the ground," taking account of an American's race is in itself always undesirable and may be allowed only in cases that so far have not, and it must now be imagined could not, come before it. Formerly it was permissible to take account of race in order to separate us. It is now impermissible to take account of race in order to bring us together, and one therefore wonders whether being apart isn't actually what is sought--albeit, for public relations purposes, sotto voce.