ACSBlog: The Blog of the American Constitution Society

This morning, the Supreme Court heard oral argument in two cases which will decide whether the Constitution denies local school districts the authority to voluntarily integrate racially segregated schools. Today's roundup will focus on these cases:

• Andrew Pincus argues that the school integration plans at issue in these cases survives even strict scrutiny.
• Lyle Denniston predicts a loss for advocates of racial integration in public schools:

  But he also left no doubt that he thought the means chosen in the Seattle and Louisville school districts were problematic, at best. Kennedy told a lawyer for the Seattle school district, Michael F. Madden, that the Court had said in 2003 that "outright racial balancing" was "patently unconstitutional." He asked: "Isn't that what you have here?...You are choosinig each student by the color of their skin." During the argument on the Louisville assignment system, Kennedy seemed no more persuaded of its validity. And he made it even clearer than he was fretting about the larger implications of a ruling that would uphold either that plan or Seattle's. While it may be that the school board in Kentucky had acted in "the utmost good faith," Kennedy said, "the question is whether or not an insincere school board that wants to play the race card, or pursue a race-driven political advantage can make decisions based on an individual student's race. That is what is involved here."

  In an acknowledgement of the impact these cases could have on existing desegregation jurisprudence, Denniston also asks if they should be styled "Brown III."

• Think Progress highlights research demonstrating that integrated schools improve the performance of minority students:

  A study examining the data by American Progress Affiliated Scholar Douglas Harris found: - African Americans and Hispanics learn more in integrated schools. Minorities attending integrated schools also perform better in college attendance and employment. - Controlled choice and other forms of desegregation benefit minority students. - Racial integration is a rare case where an educational policy appears to improve educational equity at little financial cost.

  Professor Harris also recently spoke on a panel co-sponsored by ACS and the Center for American Progress, where he presented this research.

• TAPPED accuses the conservative Justices of "selective originalism" in Equal Protection cases:

  If you look at the relevant jurisprudence of Antonin Scalia and Clarence Thomas, you'll see ahistorical assertions that the language of the 14th Amendment prohibits all racial classifications along with powerful policy arguments against the practice, but no attempt to prove that the 14th Amendment was understood at the time of its ratification to proscribe racial classifications intended to alleviate past discrimination. And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications. While it's not strictly accurate to say that you can't defend the Thomas/Scalia position on state racial classifications in "originalist" terms, you can do so only by defining constitutional principles at such a high level of abstraction that "originalism" is essentially devoid of content. If this is what originalism means, then William Brennan can be considered an originalist, Roe v. Wade is perfectly defensible in originalist terms, etc. etc.

• Finally, a transcript of the oral argument is available here.