Supreme Court and Discrimination

For anyone who is as interested as I am in the shift taking place on the Supreme Court, the recent decision in Parents Involved (the race discrimination in public schools case) has provided a wealth of enjoyable reading over the past week from various print and online sources. You can read the opinion here (all 185 pages) or get the gist of who said what here. I'd love to provide links to all the great blog posts I have read, but it would be far too time consuming.

I did want to point out this post by Deborah Hellman, which explains my problem with the plurality opinion in the case. Her idea can be summarized in this quote from her post, but you really should read her entire post to get the gist of what she is saying:

"What is missing from Justice Roberts’ analysis (and Equal Protection doctrine generally) is a theory of when drawing distinctions on the basis of race (or any other trait) constitutes wrongful discrimination. In my view, distinctions drawing is wrongful and unconstitutional when it is demeaning."

In saying this, she is taking issue with Roberts' statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” She makes a fairly compelling argument that this seemingly obvious statement is not always true.

For those who are interested in my opinion, I happen to think that Justice Kennedy's concurring opinion got it right in this case. In other words, I feel that there is a way to be "race conscious" (his words) without defining students on the basis of their race. He suggests some ways to do this on page 8 of his opinion. I also agree with Kennedy's thoughts here:

"The statement by Justice Harlan that '[o]ur Constitution is color-blind' was most certainly justified in the context of his dissent in Plessy v. Ferguson...And, as an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle."