"Supreme Court Sets Back Constitution 70 Years with Re-Segregation Decision."  The Record (July 5, 2007)

By FRANK ASKIN

	

THE U.S. SUPREME COURT has now come full circle. Half a century after it unanimously ruled that the constitutional guarantee of equal protection of the laws forbids public school segregation, a new conservative majority now says that it requires it.

In a ruling involving the school systems of Louisville and Seattle, the court ruled 5 to 4 that those school systems could not use race as a basis for school assignment in order to promote integration. While the decisive concurring opinion of Justice Anthony Kennedy left a little bit of wiggle room, the probable effect of the decision is that schools all over the country will have to respect segregated housing patterns that inevitably result in racially segregated schools.

The ruling is particularly ironic in the case of Louisville, which for many years following the decision in Brown v. Board of Education had been ordered by the federal courts to assign students across neighborhood boundaries in order to integrate its former Jim Crow system. When the desegregation order proved successful, the federal courts decided the injunction was no longer necessary.

However, the Louisville school board felt the program had worked so well in bringing about integration that it decided to voluntarily continue it.

But a group of white parents who preferred the old neighborhood schools brought suit, claiming that even the most benign race-based decisions intended to avoid discriminatory outcomes violated an alleged constitutional principle of color-blindness. In a cynical ruling that ignored both constitutional theory and American history, the Supreme Court's conservative majority upheld that claim.

A bedrock ruling

This latest ruling not only turns the 1954 decision in Brown on its head, it ignores a bedrock principle of modern constitutional doctrine dating back to 1938.

It was in Footnote 4 of the landmark Carolene Products opinion that the late Chief Justice Harlan Fiske Stone signaled the end of the Supreme Court's conservative pro-business jurisprudence and ushered in the civil rights era, which did not fully blossom for nearly two more decades.

In Footnote 4 of an otherwise forgettable Commerce Clause case involving the regulation of "filled milk," Justice Stone explained when it was appropriate for unelected judges to defer to decisions of the political branches and when it should apply what we now call strict scrutiny to those decisions.

In what the late Justice Lewis Powell called "the most celebrated footnote in constitutional law," Stone explained that judicial intervention was most appropriate when laws infringed on rights that were unlikely to be protected by the political process.

In setting aside a lower court's ruling that the filled-milk statute was unconstitutional, Justice Stone explained that such economic legislation need only be rationally related to some public health objective. If the electorate were dissatisfied with the political judgments of their elected representatives, it could respond at the polls.

On the other hand, wrote Stone, certain types of legislative or administrative actions were not entitled to this presumption of constitutionality. Chief among the latter were laws that came within a specific prohibition of the Bill of Rights, since those rights could not be subjected to revision or dilution by a political majority.

'Strict scrutiny'

Furthermore, the footnote continued, "more searching judicial inquiry" might be appropriate in regard to actions that were directed at specific religious, national or racial minorities. It was here that Stone appended the oft-since quoted phrase that legislation prejudicial to "discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily relied upon to protect minorities." Therefore, such enactments "may call for a more searching judicial inquiry," what is now known as strict scrutiny.

It was this concept that the judicial branch had a special obligation to protect the rights of "discrete and insular minorities" that provided the federal judiciary under the leadership of the Warren Court the legal ammunition to facilitate the modern civil rights movement, starting with Brown and followed by several decades of successful affirmative action.

Concerted campaign

But starting a decade ago, the conservative cabal on the court began a concerted campaign to scuttle the theory underlying Footnote 4 and exchange it for a new "color-blindness" approach.

Ignoring the teachings of Justice Stone, they substituted a new doctrine that any use of race was suspect. Under the new conservative jurisprudence, it no longer matters whether race-based classifications harmed or benefited "discrete and insular minorities." Now white persons can complain that programs intended to right historic wrongs in an effort to promote true equality and an integrated society violate democratic principles.

While Justice Kennedy does not wholeheartedly embrace the new doctrine of his conservative brethren, he also ignores the teachings of Footnote 4 and places so many hurdles in the path of voluntary integration that only the most determined school administrators are likely to even try to satisfy his idiosyncratic demands.

Chief Justice Stone, where are you when we need you?

Frank Askin is professor of law and Robert Knowlton Scholar at Rutgers School of Law, Newark, and author of "Defending Rights: A Life in Law and Politics" (Prometheus Books).