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In 1954, William Coleman Jr. sat next to Thurgood Marshall as he argued Brown v. Board of Education before the U.S. Supreme Court. In the same chamber on Dec. 4, 2006, Coleman, now 86, heard Brown being invoked as a possible reason for striking down modern-day efforts to keep public schools integrated. During an exchange between Chief Justice John G. Roberts Jr. and Michael Madden, the lawyer defending a Seattle program that uses race as a “tiebreaker” in assigning students to popular high schools, Roberts said that according to Brown, assigning students to different schools “on the basis of race . . . violated equal protection.” How, he asked, could that be distinguished from programs that use race in school assignments to achieve diversity? “Because segregation is harmful,” Madden replied. “The difference between Brown and these cases is night and day,” said Coleman. The cases being argued were Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915. Justice Anthony M. Kennedy repeatedly asked whether a school board could choose the site of a new school with the goal of achieving racial balance in light of residential demographics. Harry Korrell, representing the Seattle parents opposed to the diversity program, said that if racial equality was the sole goal, it would be unconstitutional. U.S. Solicitor General Paul Clement, who also argued against the race-conscious programs, said that a decision on where to build a school would be constitutional because it was not a racial classification. The only voices in favor of the race-conscious programs were the two school board attorneys-Madden for the Seattle school board and Francis Mellen Jr. for the Louisville, Ky., schools. But Justice Stephen G. Breyer reminded his colleagues that long-standing court precedent supports the use of race-conscious programs to achieve public school diversity. According to Justice Ruth Bader Ginsburg, “The question of . . . whether integration . . . is the same as segregation . . . is pretty far from the headlines that attended the Brown decision.” Justice David H. Souter pointed out that the only harm Seattle or Louisville students suffer because of the programs is that they might not go to their first-choice schools. Unlike the university affirmative action programs, which might result in qualified white students not gaining admission at all, the elementary and secondary schools will still educate all students in the district. “The principal benefit is the education, not the choice of schools,” Souter said. From the other side, Justice Antonin Scalia asserted that there was no principled way to distinguish between the “benign” use of race to achieve diversity and the more sinister use of race to discriminate. In one exchange, Scalia asked about the racial composition of the Louisville school board. “How do we know these are benign school boards?” Korrell said the use of race as a factor “strikes at the heart of the equal protection clause, which commands that government treat people as individuals, not simply as members of a racial class.” Teddy Gordon, representing the Louisville parents, said race-based remedies are no longer appropriate once past desegregation programs have ended.

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