Three Decisions, No School Cases

Monday, June 18th, 2007 10:10 am | Jason Harrow | Print This Post

The much-anticipated school assignment cases were not decided today.



6 Comments »



  1. I predict that Kennedy is writing all the remaining opinions, which will come out 4-1-4, maybe by August 1.

    But seriously folks, could some of the ex-clerks out there explain why the “big” cases always come out at the end of the term? The conventional answers are (1) lawyers can’t get anything done without a deadline; and (2) there is a lot of back and forth with the dissent(s). Is it really true that, with rare exceptions, cases come out as soon as they are ready without regard for media impact?

    Thanks, roger friedman

    Comment by r.friedman — June 18, 2007 @ 10:33 am

  2. I predict that the school cases don’t have a straightforward majority (an opinion joined in full by at least five justices). The other possibility is that a justice flipped, with the former majority opinion becoming a dissent, and vice versa.

    Comment by Marc Shepherd — June 18, 2007 @ 10:45 am

  3. No one can predict with certainty how the Court will rule.

    Maybe they will split the baby and strike down the use of race in one of the school cases and uphold it in the other school case.

    Logically, they should strike down both school systems’ use of race, since the school systems are both engaged in racial balancing, contrary to the Supreme Court’s decisions in Freeman v. Pitts and other cases, and contrary to the text of the 1964 Civil Rights Act, which expressly rejects “racial imbalance” as a reason for using race. (See Title IV, Section 401(b)).

    Moreover, it is quite clear that the school system’s use of race is not temporary, as the Supreme Court cautioned must be the case in its Grutter decision, but rather permanent.

    For example, on their web site, the Seattle Schools have attacked the very concepts of colorblindness and treating students of different races as individuals rather than as members of competing racial groups. They have claimed that “individualism” is a form of “cultural racism,” and that planning ahead is a race-based white characteristic that it is racist to expect non-whites to exhibit.

    That race-obsessed thinking suggests that Seattle’s use of race was not a temporary measure designed to overcome racism, but rather a permanent commitment to race-based decisionmaking, contrary to Supreme Court decisions mandating that the use of race be a temporary measure designed to achieve a colorblind society. See Miller v. Johnson, 515 U.S. 900, 904 (1995) (Constitution’s “central mandate is racial neutrality in governmental decisionmaking”); Shaw v. Reno, 509 U.S. 630, 657 (1993) (14th Amendment’s “goal” is “a political system in which race no longer matters”).

    The racial balancing the school systems are engaged in violates the explicit text of the 1964 Civil Rights Act.

    In Title VI, it forbids all racial discrimination. In Title IV, Section 401(b), it rejects a “racial imbalance” exception for discrimination:

    “‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”

    Similarly, the Supreme Court has stated that “racial balance is not to be achieved for its own sake” in Freeman v. Pitts (1992), and that “racial balancing” is “patently unconstitutional” in Grutter v. Bollinger (2003).

    But the Court isn’t bound by its own past precedents, and in cases raising volatile issues of race, consistency and past precedent are often casualties.

    Consider the University of Michigan cases, where the Court ironically upheld the University of Michigan Law School’s more extreme (but camouflaged) use of race, while striking down the undergraduate admissions system’s less extreme but still heavy use of race (the undergraduate system still placed great emphasis on race, giving race far more weight than non-racial diversity factors, and treating most other factors (such as one’s application essay) as quite unimportant by comparison).

    The Supreme Court wanted to split the baby in that case, and did so regardless of the inconsistent results that produced.

    So how the court will rule in the current school assignment cases remains shrouded in mystery, despite the deep skepticism five justices showed towards the school systems’ rigid use of race at oral argument.

    Comment by Hans Bader — June 18, 2007 @ 2:51 pm

  4. Logically, they should

    Yeah, because logic is all about oughts.

    Comment by Jacques McKenzie — June 18, 2007 @ 5:18 pm

  5. What if the Chief Justice is trying to make at least one of the opinion’s 9-0 (or as close to that as possible)?

    Comment by Michael Krupen — June 18, 2007 @ 9:49 pm

  6. Roger — Perhaps its just a case of the Chief being busy. According to Tom Goldstein’s analysis of remaining merit cases, the Chief still has three decisions to be announced.

    I would also agree with the idea that we might be seeing multiple either concurrences or dissents. Scalia / Thomas might be writing something looking to overturn all affirmative action plans while Roberts takes a more narrow view.

    -Kent Ostby

    Comment by K Ostby — June 19, 2007 @ 9:41 am

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