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In a historic final day of the Supreme Court term Thursday, the justices by a 5-4 vote struck down plans in Seattle and Louisville, Ky., that used race as a factor in making public school assignments. With both sides invoking the landmark case Brown v. Board of Education � either to attack consideration of race by public schools or to support it � the decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education represented a major doctrinal shift that can be traced to the Court’s new members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” declared Roberts in an opinion stating his views and those of Justices Alito, Antonin Scalia, and Clarence Thomas, the Court’s only African-American member. But the Court stopped short of overturning its precedents on either school desegregation or affirmative action, as Justice Anthony Kennedy, in a key separate opinion, said race could still be a consideration in limited instances in devising school programs to end racial isolation and encourage diversity. Still, the decision prompted Justice Stephen Breyer to read aloud from his angry 77-page dissent, which he said was “twice as long as any I have ever written.” Breyer said the Court majority had swept aside decades of leadership in helping to end the effects of slavery and segregation. School boards, he argued, should have the ability to use race in fashioning programs aimed at preventing a return to school segregation. Rarely, Breyer said, “have so few, so quickly, changed so much.” It was a ruling that, Breyer said, “the Court and the nation will come to regret.” The decision, delivered more than six months after the case was argued, took a toll that was clear on the faces of the justices. As Breyer read from the left side of the bench, on the right side his ally Justice Ruth Bader Ginsburg was hunched over, looking sullen, while next to her Alito seemed exhausted and upset, supporting his head with his hand. Alito’s vote may have been the key, because his predecessor Sandra Day O’Connor had upheld race-conscious affirmative action plans in some cases.Roberts had read his majority opinion confidently, invoking Brown as the reason race should not be used as a factor in schools � whether for benign or improper reasons. Seattle, which Roberts said had never been under court orders to desegregate, used race as a tiebreaker in assigning students to schools where one race or another predominated. Jefferson County, Ky., comprising greater Louisville, had been subject to court-ordered desegregation, but the order was dissolved in 2001 when the district was declared “unitary.” But the district still used race in deciding on transfer requests among schools. Both school districts, Roberts said, “have not carried the heavy burden” of justifying why race should be used in the same way it was used before Brown, namely to tell children “where they could and could not go” to school. The ruling brought swift reaction from the civil rights community. Wade Henderson, president of the Leadership Conference on Civil Rights, calls the ruling a “deeply disturbing” development that “illustrates profoundly that judicial appointments matter.” While decrying the decision as a tragic turning point, Henderson and other civil rights leaders by day’s end clung to Kennedy’s concurrence, which appears to leave the door open to “general” efforts to encourage racial diversity, so long as they don’t single out individual students for different treatment based on their race. While joining the Roberts opinion in striking down the Louisville and Seattle programs, Kennedy parted company with some of the decision and said schools may still “pursue the goal of bringing together students of diverse backgrounds and races” through means such as magnet schools and locating new schools with demographics in mind. “The more we look at Justice Kennedy’s opinion, the more clear it is that there is an opening” for continuing efforts to prevent the resegregation of schools, says Theodore Shaw, president of the NAACP Legal Defense and Educational Fund. Shaw was in the courtroom as the decision was announced, just as Thurgood Marshall, his long-ago predecessor, was in the courtroom when Brown v. Board of Education was announced in 1954. Shaw drew a parallel between Kennedy’s opinion Thursday and the concurrence by Justice Lewis Powell Jr. in the 1978 ruling Regents of the University of California v. Bakke, which, over time, became viewed as the controlling opinion of the Court. The Powell concurrence was used as the legal justification for decades of affirmative action plans. But groups that challenged the programs before the high court warned Thursday against using the decision to perpetuate race-based programs. “With these decisions, an estimated 1,000 school districts around the country that are sending the wrong message about race to kids will have to stop,” said Sharon Browne, a lawyer with the Pacific Legal Foundation who was part of the legal team representing parents who challenged the race-based programs in Louisville and Seattle. She called Thursday’s decisions “the most important decisions on the use of race since Brown v. Board of Education.” The Bush Justice Department, which sided with the parents challenging the school programs, applauded Thursday’s ruling as reaffirming “our long-standing position that outright racial balancing is unconstitutional and that state-mandated racial classifications have a profound stigmatizing effect.” Spokesman Brian Roehrkasse adds, “The administration recognizes that school districts have an unquestioned interest in reducing minority isolation through race-neutral means that will improve educational opportunities for all children.” Announcement of the long-awaited ruling caused ripples throughout Washington, D.C. At an American Constitution Society panel discussion taking place across town, news of the decision came via BlackBerrys. Akin Gump Strauss Hauer & Feld high court expert Thomas Goldstein, a speaker at the panel, said the term just ended would be regarded as “the birth of a new jurisprudential era.” Stanford Law School professor Pamela Karlan added, “All I can say is, what an ugly baby.” [ Note: Goldstein is a contributor to Legal Times.] The Court’s final day has sometimes in the past been the dramatic occasion for justices to announce their retirement. But on Thursday, the race cases and Breyer’s sharp rebuke of his colleagues produced more than enough drama. Still, there was a retirement announcement in the closing minutes of the Court’s session. Roberts took special note of the retirement of Harry Fenwick, the Court’s “food preparation specialist,” after 38 years of service. Fenwick was in the Court chamber to hear his name mentioned.
Tony Mauro can be contacted at [email protected]. Law.com editor Laurel Newby contributed to this report.

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