Dellinger: On what is about to come

Slate Magazine:

I want to jump to the Louisville and Seattle cases that we are reasonably certain will be announced this Thursday morning. It's hard to think about much else because I fear the court is about to make a mistake of historic proportions by invalidating school assignment plans that take account of race to lessen the amount of racial segregation in the schools.

A majority of the justices seem to believe that striking down these plans would relocate school assignments to some race-neutral Garden of Eden, a wondrous, mythical place in which race plays no role in which public schools pupils attend. That assumption reflects an enormous blind spot. These plans at issue use race to mitigate the effects of racial separation in residential housing. They thus ultimately reduce the role of race in pupil assignments. For the justices to assume that race comes into play for the first time when these school boards attempt to lessen racial separation is to make an assumption tragically blind to the role of race in America....

One fundamental failing of those who would invalidate Louisville's efforts is the failure to see that voiding Louisville's benign use of race will leave in place a pupil assignment system heavily determined by racial decisions. The schools that will tend to become all-black won't be that way as a matter of accident, chance, or purely private choice. They will be that way because federal, state, and local government have all played roles in facilitating the segregation of housing in this country. And school systems that choose residential assignment systems are aware of how that choice produces racially separate schools. Even if a school system is not required to take steps to ameliorate that separation (as Lewis Powell suggested), surely it is permitted to do so.