In 1954, a unanimous Supreme Court ruled that public schools cannot determine campus placement based upon a student's race. Today, over five decades later, in a 5-4 decision, the same rule was applied by the United States Supreme Court -- but four "liberal" justices effectively sought to overrule Brown v. Board of Education in order to permit districts to assign students to a school other than the one closest to their home based upon the student's race.

The Supreme Court on Thursday rejected school assignment plans that take account of students' race in two major public school districts. The decisions could imperil similar plans nationwide.

The rulings in cases affecting schools in Louisville, Ky., and Seattle leave public school systems with a limited arsenal to maintain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court's judgment. Justice Stephen Breyer wrote a dissent that was joined by the court's other three liberals.

Perhaps the single best part of the opinion authored by the Chief Justice is this little bit of common-sense wisdom that was lost on the minority but should be carved on granite in every town square in America.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Thomas was eloquent, powerful, and a bit more scholarly with this observation, but not nearly as pithy.

"What was wrong in 1954 cannot be right today," Thomas said. "The plans before us base school assignment decisions on students' race. Because 'our Constitution is colorblind, and neither knows nor tolerates classes among citizens,' such race-based decisionmaking is unconstitutional."

It is important here to remember something about these two school desegregation/integration plans. These were not campus assignments pursuant to a court order to remedy past segregation -- in one case there was never a desegregation order and in the other the order had been lifted by the supervising court. But in each case the district decided that the race of a student should be the basis for the assignment of children to a campus other than the one that their place of residence would ordinarily dictate. A majority today rejected that concept -- although one Justice in the majority seems to be prepared to go wobbly on this bedrock principle of civil rights in education and join the minority in repudiating Brown v. Board of Education in some instances.

Justice Anthony Kennedy wrote a concurring opinion in which he said race may be a component of school district plans designed to achieve diversity.

He agreed with Roberts that the plans in Louisville and Seattle went too far. He said, however, that to the extent that Roberts' opinion could be interpreted as foreclosing the use of race in any circumstance, ''I disagree with that reasoning.''

Particularly frightening is that the dissenters dared to claim that the majority's position upholding Brown's core principle -- that school assignments based on race violate the Equal Protection Clause of the Fourteenth Amendment -- constituted an assault on Brown and that their repudiation of that principle constituted the ultimate fulfillment of it!

Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts' opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

"To invalidate the plans under review is to threaten the promise of Brown," Breyer said.

The problem is that Brown does not call for integration -- it calls an end to legally-mandated segregation. Indeed, "integration" of schools is not required by the Constitution and would, in most places, require an unconstitutional distribution of benefits and burdens based upon race of the sort banned under Brown to accomplish.

The other day I asked if the precedent in Tinker v. Des Moines was dead? Based upon the willingness of a substantial minority of the court to abandon the fundamental principles of Brown v. Board of Education and the lack of firm resolution to uphold that seminal decision on behalf of equality of all students based upon race on the part of a fifth, I am left fearing for the future of race-neutral treatment in public education, even as I celebrate the decision in today's cases.

UPDATE: The New York Times, of course, comes out firmly in favor of violating the Equal Protection Clause of the Fourteenth Amendment in an editorial that ought to be called "Civil Rights: They're A Black Thing".

I wonder -- would they have been equally supportive of a plan designed to make sure that predominantly white schools didn't become "too black" and denied transfers for that reason?

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