Roberts previewed his schools ruling in 2005

In December, when the cases were argued before the high court, Roberts had made plain his view that the precedent of the Brown decision mandated that race not be used as a factor in placing students in particular schools.

When Roberts contended that students were “being denied admission on the basis of their race,” Seattle School District lawyer Michael Madden countered with the argument that “They're not being denied admission.... Seats are being distributed to them.”

But Roberts didn’t accept this, telling Madden, “The reason that our prior tests have focused on individual determination is that the purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than based on the color of their skin…. The decision to distribute, as you put it, was based on skin color and not any other factor.”

In using the Brown decision as his precedent Thursday, the chief justice even went so far as to quote one of the lawyers who argued the Brown case before the high court in 1952.

“No State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens,” lawyer Robert Carter told the high court in 1952 as he argued the cause of the black children who had been sent to a segregated school.

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“There is no ambiguity in that statement,” Roberts commented Thursday. “And it was that position that prevailed in this Court” back in 1954.

Tempering the chief justice's opinion was the concurring opinion filed by Justice Anthony Kennedy who voiced his view that school administrators can sometimes use race-conscious measures, such as "strategic site selection of new schools" to achieve racially mixed student bodies.

He said some observers might misinterpret Thursday's ruling to conclude that "the Constitution requires school districts to ignore the problem of de facto resegregation in schooling."

But, he said, "I cannot endorse that conclusion."

Kennedy said the problem was the "crude" way in which the school districts went about using race in placing students.

Kahlenberg predicted that in the aftermath of Thursday's ruling, school districts would start using "socioeconomic status rather than race" in assigning students to schools. "Using socioeconomic status as a factor in student assignment is perfectly legal, and yet it will indirectly produce much greater racial diversity than a system of neighborhood schools."

In his dissenting opinion, Justice Stephen Breyer, who once served as a staff attorney for Sen. Kennedy, said Roberts had his reading of history all wrong.

“It is a cruel distortion of history to compare Topeka, Kansas, in the 1950s to Louisville and Seattle in the modern day — to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined).”

Breyer admitted that “that there is a cost in applying ‘a state-mandated racial label.’”

But he said “that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation.”

In contrast to Kennedy's chagrined reaction, another Democratic senator, Jim Webb of Virginia, had a more equivocal immediate response to the ruling, “I would be hesitant to venture an opinion about a decision I haven’t read, but it seems to me that that was sort of decided back in Brown v. Board of Education when they eliminated race as an issue,” Webb said.

A Republican member of the Senate Judiciary Committee, Sen. John Cornyn of Texas, who voted for Roberts, said of Thursday’s ruling, “I’ve always been under the impression that we were striving for a color-blind society, so I would think that this is a correct ruling. It is a two-edged sword. Once you begin to take race into account, then government becomes a determiner of what’s enough and what’s not enough. Once you head down that road, you’re on thin ice.”

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