Roberts previewed his schools ruling in 2005

Tom Curry National affairs writer • Profile • E-mail

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

So said Chief Justice John Roberts, speaking for a five-justice majority Thursday as the court ruled that public school administrators can not use race in assigning students to particular schools.

To use race-influenced assignments, Roberts said, violates the Equal Protection Clause of the Fourteenth Amendment.

The irony is that in the Seattle and Jefferson County, Ky., cases that the court decided Thursday, the school administrators were using race as one factor in assigning students to schools — but they were doing so in order to prevent the schools from becoming racially segregated.

Decisive in the outcome was the chief justice’s statement that the schools in these cases “never segregated on the basis of race” (Seattle) or “have removed the vestiges of past segregation," in the case of Jefferson County.

This was "very significant," said Richard Kahlenberg, an expert on school segregation at the Century Foundation. He said if the school districts in question had been under court-ordered desegregation, "they would have been free to continue to use race" in assigning students to schools.

Should court-watchers have been surprised at how Roberts ruled?

Not if they were paying attention two years ago when Roberts testified during his confirmation hearings before the Senate Judiciary Committee.

Two years ago, as he did Thursday, Roberts interpreted the court’s 1954 Brown v. Board of Education desegregation decision to require that students not be separated by race.

For him and his four majority colleagues, Brown v. Board of Education means that race cannot be used to assign students to specific schools.

Roberts telegraphed his views clearly in responding to a question from Sen. Edward Kennedy, D-Mass., on the Brown decision.

Separating students by race
In his testimony on Sept. 13, 2005, the nominee told Kennedy that the court in Brown v. Board of Education had “found that the separate education was inherently unequal.… The genius of the decision was the recognition that the act of separating the students was where the violation was.”

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The justices, Roberts told Kennedy then, rejected the idea “that you could have equal facilities and equal treatment.” In Roberts’ analysis, “the act of separation is what constituted the discrimination.”

Asked to comment on Thursday’s decision, Sen. Kennedy said, “This continues to demonstrate the inadequacy of the confirmation process where we had, in the case of Roberts, a confirmation conversion on the issues of civil rights.”

Kennedy recalled that as a lawyer in the Reagan administration, Roberts had criticized the 1982 revision of the Voting Rights Act and had argued against using racial preferences in allocation of broadcast licenses. 

“He had a conversion (during his confirmation hearings),” Kennedy said, adding of Thursday’s decision, “It just shows that we need to undo it.”

Despite Kennedy's opposition two years ago, Roberts did win confirmation (with 78 senators supporting him).

Once he was on the bench, he made it clear how he’d apply the Brown desegregation ruling to the Seattle and Kentucky cases that the court decided Thursday.

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