CHIEF JUSTICE ROBERTS PLAYS GAMES WITH BROWN VS. BOARD OF EDUCATION

Chief Justice John Roberts tries to use the reasoning of Brown vs. Board of Education as his lawyerly clever, sleight-of-hand weapon, against those who would have America's schools racially integrated. He claims then-Chief Justice Earl Warren ruled in Brown that schools may never take into a student's race in striving for a racially diverse student body.

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin . . . For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation . . . , the way "to achieve a system of determining admission to the public schools on a non racial basis," is to stop assigning sutents on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Does Roberts' argument stand and pass the laugh test? He argues that when a school district finds itself with a racially unbalanced student body resulting from economic or social factors other than having been caused by state or Jim Crow laws, it can not assign students to various schools on the basis of their race for the purpose of leveling the racial playing field.

Comments Samuel Bagenstos, Professor of Law, Washington University Law School:

"Chief Justice Roberts gives us no reason to believe that a rule of formal governmental race-blindness, that entrenches and enforces the results of private racial discrimination, will “stop discrimination on the basis of race.” He gives us nothing more than the platitude that when the government takes race into account it “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.” (Here he quotes from a 1993 opinion involving racial gerrymandering in redistricting.) Chief Justice Roberts is making an awfully doubtful empirical assertion here, without providing any empirical evidence. And the normative premise that school districts must take private discrimination as they find it, with their hands tied from responding to it, seems to me totally unjustifiable. Remember that here we are dealing with school districts that voluntarily chose to adopt integration plans—this isn’t a case involving court-ordered integration."

Justice John Paul Stevens in his short but meaningful dissent also takes aim at Roberts' "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" platitude:

"There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." . . . This sentence reminds me of Anatole France's observation: "[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions."