Dispatch from One First Street: The Race in Public School Cases

Yesterday the Supreme Court heard oral arguments in two cases concerning the use of race as a factor in assigning students to public schools: Parents Involved in Community Schools v. Seattle School District #1, out of the Ninth Circuit, and Meredith v. Jefferson County Board of Education, out of the Sixth Circuit.
It appears that SCOTUS virgin Teddy Gordon, representing the petitioners in Meredith, did just as badly as many members of the snooty SCOTUS bar expected. For a blow-by-blow account of his ill-fated argument, see this reader comment.
Our commentary on the arguments, plus links to audio-casts and written transcripts, after the jump.


Question Presented: In oversimplified terms, are so-called “voluntary integration plans” constitutional? Here’s a one-sentence summary of such plans, from the NYT: “[S]tudents are offered a choice of schools but can be denied admission based on their race if enrolling at a particular school would upset the racial balance.”
Money Quote(s):
From Chief Justice Roberts, questioning the lawyer for the Seattle school district, who argued that the high schools in question were “basically comparable” and that “everyone gets a seat”:

“[E]veryone got a seat in Brown [v. Board of Education] as well. But because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there’s no problem here because everybody gets a seat distinguishable?”

Gee, we wonder which way the Chief is leaning…
Justice Kennedy, responding to the same point by the school district’s lawyer:

“[T]he emphasis on the fact that everybody gets into a school, it seems to me is misplaced, but the question is whether or not you can get into the school that you really prefer. And that in some cases depends solely on skin color. You know, it’s like saying everybody can have a meal but only people with separate skin can get the dessert.”

Only Bill Cosby gets the jello pudding pops. Justice Kennedy, no pudding pops for you.
(Also, we don’t mean to be annoyingly pedantic — verbal slip-ups are common when one is speaking extemporaneously — but “separate skin”? We’re imagining some hideously painful surgical procedure.)
From the other side of the argument, Solicitor General Paul Clement got a quasi-patronizing civics lecture from Justice Breyer:

“Think, go back to Cooper v. Aaron. Go back to the case where this court with paratroopers had to use tremendous means to get those children into the school. That’s because the society was divided. Here we have a society, black and white, who elect school board members who together have voted to have this form of integration.”

“Why, given that change in society, which is a good one [Ed. note: Thanks, SGB], how can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the black children out of the school?”

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“Now it’s time for animal crackers. And then naptime!”
We’re imagining Justice Breyer, wearing the orange vest of a school crossing guard, directing black schoolchildren to one side of the street and white schoolchildren to the other. Then along comes a little girl who looks like a miniature Halle Berry. SGB throws up his hands in despair…
Likely Outcome: This is getting boring. We’re cutting and pasting from our last SCOTUS post: It all comes down to Justice Kennedy.
As for which way Justice Kennedy is leaning, Lyle Denniston, after reading the oral argument tea leaves, concludes that AMK will vote against the use of race as a factor.
But it ain’t over ’til it’s over. Denniston notes that at yesterday’s arguments, Justice Kennedy engaged in a lot of “fretting” from the bench.
Which, of course, is what Justice Kennedy does best.
Argument coverage:
Court Reviews Race as Factor in School Plans [New York Times]
Court Hears Cases on Schools and Race [Washington Post]
Analysis: Schools’ race experiments may be doomed [SCOTUSblog]
Parents Involved v. Seattle (audio)
Parents Involved v. Seattle (transcript) (PDF)
Meredith v. Jefferson County (audio)
Meredith v. Jefferson County (transcript) (PDF)
Background:
Parents Involved in Community Schools v. Seattle School District #1, No. 05-0908 [On the Docket/Medill Journalism]
Meredity v. Jefferson County Bd. of Education, No. 05-0915 [On the Docket/Medill Journalism]
Earlier: Amateur Hour at One First Street?

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