Justices Limit Use of Race in Placement of Students

New York Times:

WASHINGTON (AP) -- The Supreme Court on Thursday rejected school diversity plans that take account of students' race in two major public school districts but left the door open for using race in limited circumstances.

The decision in cases affecting schools in Louisville, Ky., and Seattle could imperil similar plans in hundreds of districts nationwide, and it further restricts how public school systems may attain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court's judgment. The court's four liberal justices dissented.

The districts ''failed to show that they considered methods other than explicit racial classifications to achieve their stated goals,'' Roberts said.

Yet Justice Anthony Kennedy would not go as far as the other four conservative justices, saying in a concurring opinion that race may be a component of school plans designed to achieve diversity.

To the extent that Roberts' opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, ''I disagree with that reasoning.''...Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts' opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

''To invalidate the plans under review is to threaten the promise of Brown,'' Breyer said.

Selected highlights from Justice Thomas in Bong Hits

MORSE v. FREDERICK:

[Some of the following reflects Justice Thomas' own words; some is material he quoted from other sources. I'm including both to convey the flavor of his "thought" and rhetoric:]

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order. ...

“To accomplish th[e] desirable ends [of teaching self-restraint, obedience, and other civic virtues], the master of a school is necessarily invested with much discretionary power… . He must govern these pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn. He must make rules, give commands, and punish disobedience. What rules, what commands, and what punishments shall be imposed, are necessarily largely within the discretion of the master, where none are defined by the school board.”...

“[L]anguage used to other scholars to stir up disorder and subordination, or to heap odium and disgrace upon the master; writings and pictures placed so as to suggest evil and corrupt language, images and thoughts to the youth who must frequent the school; all such or similar acts tend directly to impair the usefulness of the school, the welfare of the scholars and the authority of the master. By common consent and by the universal custom in our New England schools, the master has always been deemed to have the right to punish such offences. Such power is essential to the preservation of order, decency, decorum and good government in schools.” ...

The doctrine of in loco parentis limited the ability of schools to set rules and control their classrooms in almost no way. It merely limited the imposition of excessive physical punishment. In this area, the case law was split. One line of cases specified that punishment was wholly discretionary as long as the teacher did not act with legal malice or cause permanent injury. ...

Justice Black dissented [in Tinker], criticizing the Court for “subject[ing] all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.” He emphasized the instructive purpose of schools: “[T]axpayers send children to school on the premise that at their age they need to learn, not teach.” In his view, the Court’s decision “surrender[ed] control of the American public school system to public school students.”

Of course, Tinker’s reasoning conflicted with the traditional understanding of the judiciary’s role in relation to public schooling, a role limited by in loco parentis. ...

I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools. ...

Justice Black may not have been “a prophet or the son of a prophet,” but his dissent in Tinker has proved prophetic. In the name of the First Amendment , Tinker has undermined the traditional authority of teachers to maintain order in public schools. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.”

I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.

The couch beckons...

Conservatives go 4-4 today at the Supreme Court

Washington Post: Bench Conference: By Andrew Cohen

Legal and political conservatives hit for the cycle Monday morning when they 'won' four long-awaited rulings from the United States Supreme Court. The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school.

Each of these decisions help establish the true conservative bona fides of this Court. It is more conservative than it was last term, when Sandra Day O'Connor sat in one some of the cases. And was more conservative last term than the term before that, before Chief Justice Roberts and Justice Sam Alito joined the Gang of Nine. In fact, the Court now is is so entrenched on the ground of the legal right that, aside from the global warming case decided earlier this year, it is hard to point to a single major ruling this term that could or would give succor to legal liberals or even jurisprudential moderates. ...

Indeed, so strong is the conservative bent to the court right now that even when its right-facing Justices did not agree on the legal reasons or rationale for their rulings-- which was the case in the religion case noted above-- they are able to agree to promote government sponsorship of religion and to block taxpayer efforts to prevent it. In other words, there is room for dissent even among the Court's working majority-- a bad sign for liberal judges, lawyers and litigants in the months and years to come.

People can and do and will disagree about the "correctness" of these rulings-- but no one should have any doubt now that President George W. Bush's campaign promise-- to take the Supreme Court to the right-- has been fulfilled. That question is no longer open to argument and you need only to take a few minutes to read today's rulings to understand why.

My colleague Ann Althouse is blogging up a storm on these decisions over at http://Althouse.blogspot.com