You have declared in your recent integration related opinion that you do not believe that either children of color or the institutions that serve them benefit from the diversity that derives from integration. In your view, American is the land of freedom and equal opportunity and there is absolutely no reason to consider race in the administration of publicly supported education. To suggest that race may be an appropriate factor in creating balance and diversity, you say, is to demean the Black children by suggesting that they would not be equally successful in segregated schools. This reasoning was previously known as the “separate but equal “doctrine that was struck down by the Supreme Court a half century ago. You also decry the admission of poor Black students to professional schools through any type of affirmative action [like the program at Yale Law School to which you were admitted under a minority set aside]. You complain that such opportunities deceive these Black scholars into thinking that they might be able to compete with their White counterparts. The result, should they fail, would be a devastating emotional blow from which your approach would shield and benevolently protect them.
While I am sure that in your mind [failing though it may be at this point] is convinced and your heart is well meaning, there are a few discrepancies in your reasoning and view of the facts that we feel compelled to point out briefly here. The most obvious would be your own appointment to the Supreme Court, which was clearly driven by race based considerations. No other justice currently on the bench was appointed in the face of compelling evidence of illegal sexual harassment and discrimination against a female subordinate. Your prior career of performance at the EEOC and your prior judicial decisions were less than stellar. Thus, it would be fair to say that you may not have been the most qualified and untarnished candidate for the High Court. Yet the need to fill the seat vacated by the only justice of color apparently carried the day despite your moral and intellectual shortcomings. Your attendance in higher education was a result of a discriminatory family decision to deny your sisters educational opportunity so that you, the male child, could advance your education. Your educational financing was supported by government programs designed to enhance educational opportunity for young poor students of color. But of course, these events are in the past and to be overlooked or forgotten.
So let’s turn to the logic of your current opinions. The programs utilized by the school district in Louisville were not designed nor did they operate to apply admission decisions that single out an individual upon the basis of race. The problem that the system was attempting to address is an historical and complex one that involves demographics of school attendance and residential demographics. Louisville is a metropolitan school district. As a result, the older and less maintained school buildings in the inner city were gradually abandoned for newer buildings in more economically stable or affluent areas. This transition required some measures to balance the assignment of students to different schools in order to avoid creating segregated schools. Their solution involved creating thresholds above which they would apply race as a factor in balancing the demographics of schools, rather than allowing a school to become segregated. In other words, students were not denied admission to the Louisville School System, but were not allowed complete freedom to choose which school they could attend in those limited situations where the school system policy of balance and diversity would be undermined.
With all due respect, your reasoning harkens back to the “separate but equal” doctrine and the prevalence of de facto segregation that perpetuated the deficiencies of deliberate racial discrimination in educational opportunities. The Chief Justice was being intellectually dishonest in suggesting that devices such as geographic school boundaries would solve the problem in a Constitutionally acceptable manner. Recent Supreme Court cases involving gerrymandering of voting districts in the fashion suggested by the majority for school attendance have been viewed as dubious at best. In a world that has become more globally interconnected and in which the ability to comprehend and interact with people of different backgrounds and cultures is imperative, the idea that returning to segregated educational systems is better for Black children is unrealistic if not downright knuckleheaded [respectfully, of course].
Your paternalistic argument that would protect poor Black scholars from the risk of disappointment should they gain admittance to higher education through affirmative action is also flawed. These students’ failure to obtain admittance through “traditional” admissions processes may not be because they are less capable, but rather because the criteria traditionally used have been constructed and applied in a manner that was biased in favor of more affluent white students. In addition, every student of any ethnic background who fails to make the grade in law school is disappointed, many are devastated. But the opportunity to succeed must also be accompanied by the opportunity to fail. Your logic would deny Black students the opportunity to succeed because of the risk that they might fail. Which philosophy is truly more presumptuous and demeaning?
In a perfect world, without the vestiges and the current operation of racial prejudice and exclusionary policies, the opportunity for quality education would be open to all on an equal basis. However, you would need to emerge from the darkened cloak room with your good buddy Scalia in order to notice that the rest of us do not live in such an Eden. The public school system, with all of its flaws and imperfections, is one of the cornerstones for the establishment of the primacy of this country. In the real world, the public educational system has to confront and interface with political system changes and ideological opportunism, with taxation and funding issues, with real estate market realities and with constantly changing and increasing demands for elevated services to provide competitive general education. None of these issues were adequately contemplated by the original drafters of the Constitution, and no amount of “strict constructionist” sophistry can yield a useful and meaningful response to current problems without recognizing the real world facts. Honor the basic and fundamental principles, but you must not do so in a manner that is deliberately ignorant of the real world to which the decisions must be applied.
While your intent may be well meaning, albeit weak minded, the agenda and intent of your colleagues Scalia, Alito and the Chief Justice are far less benign. If you cannot see the weaknesses in your logic and the disconnect with the real world, then perhaps you should honor your own philosophy and consider stepping aside to allow a more competent jurist to take your place, regardless of his or her race.
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