My Thoughts on the Seattle & Louisville Cases

Here goes nothing.

This case hinges on a debate that has endured in legal philosophy for centuries: are rights positive or negative? In other words, are freedoms to be considered as freedoms from something or as freedoms to something? Negative rights are freedoms from government action. Positive rights are freedoms to have to government act on the right-holder's behalf.

The Chief Justice's opinion for the Court (which is a majority in some respects and a plurality in others) and Justice Kennedy's concurrence in judgment both take a fundamentally negative view of the rights arising under the Equal Protection Clause: individuals are given the freedom, under the Equal Protection Clause, to be free from having the government classify them on the basis of their race. The Chief Justice makes this point abundantly clear: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In this paradigm, segregation is a positive governmental action and each citizen is and should be free from such positive acts. We are all free from "de jure" segregation- active segregation by law.

Again, Chief Justice Roberts:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons.

To be clear, Justice Kennedy writes his own opinion to argue that citizens are only free of racial classifications to the extent that the government making the classification can show that there is a compelling interest in making it and that there is no way to achieve that interest without counting by race. He leaves the door open to allowing state action to remedy "de facto" segregation, which is segregation in fact. De facto segregation (which the majority may call a contradiction in terms) arises from housing patterns: races live near each other and therefore neighborhood schools reflect the narrow racial mixture of the neighborhood not the racial mixture of the city. Justice Kennedy's position is that there may be some positive right relating to segregation, even de facto segregation, but it is very hard to find an interest compelling enough, and a law tailored narrowly enough, to justify the exercise of that right.

The dissents' position embraces positive rights. They view the right in Brown v. Board of Education as a positive right: the right to attend an integrated school. This perspective aims farther than the negative rights view because it requires that the courts enforce laws that create positive integration, not merely the absence of segregation. Consider this excerpt from Justice Breyer's dissent:

In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality--not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

The verbs in this passage show the emphasis on positive rights: challenge, change, make, work, and seek.

Justice Thomas's concurring opinion challenges this positive rights approach:

Regardless of what JUSTICE BREYER's goals might be, this Court does not sit to "create a society that includes all Americans" or to solve the problems of "troubled inner city schooling." Ibid. We are not social engineers.

The negative rights crowd aims at color-blindness (per Justice Thomas); the positive rights crowd would allow local governments to use "race-conscious criteria" to further the interest of integration as long as those criteria do not involve "invidious discrimination."

In this case, Justice Kennedy charted a middle course between negative and positive rights. His opinion requires schools to start with a negative rights approach and only allows them to proceed to positive integration (i.e., directly counting by race) if the race-neutral means fail to achieve the compelling interest. He denies that color-blindness is a workable constitutional principle, though he clearly prefers it to counting by race.

I think that Justice Kennedy's approach, while it is a huge mess, will have the effect of forcing states into embracing the negative rights approaches. Before a school board can start counting by race, it will have to show that it exhausted the race-neutral alternatives. Practically, I don't think that school boards will be willing to create fully individualized interview processes addressing each student's skills and needs or pay for building schools so that they naturally draw from diverse neighborhoods. Without taking these steps, I don't think that a board will be able to satisfy Justice Kennedy's requirements, and his opinion is the law.

So what do you think? Is there a right to integration? Is it the job of the Supreme Court to say that the way to end racial discrimination is to stop discriminating by race? Is it the job of judges to determine which forms of discrimination are invidious and which are benign? Which side followed Brown?

Really good commentary is now available at scotusblog and bench memos.