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Much of the bitter division in the U.S. Supreme Court’s two decisions on racial integration in Seattle and Louisville, Ky., stems from the profound differences in setting the objectives of public education. Chief Justice John G. Roberts Jr. thinks that the legacy of Brown v. Board was eliminating explicit racial classifications. “The way,” he says, “to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Thus he was prepared to strike down programs in both cities that denied white students transfers to certain schools solely on the ground of race, regardless of any laudable motivation. Justice Stephen G. Breyer in dissent, and even Justice Anthony M. Kennedy as the pivotal fifth vote, demurred from that rigid vision. Kennedy went along with the majority in striking down these plans because he found that they were not narrowly tailored for their intended purpose of racial harmony. Breyer, writing for the four dissenters, wanted a far greater level of deference to local school boards in wrestling with the thorny problems of race in education. Ironically, Breyer’s views would have easily carried the day under the court’s infamous 1896 8-1 decision in Plessy v. Ferguson. Why? Because Plessy‘s central legal tenet was that local governments receive broad deference in exercising their police power to pick means that best address delicate matters of race relations. Its view is an early prototype of the rational-basis test that is (alas) everywhere the vogue in modern constitutional law. At this point, the $64,000 question for the four dissenters is how to both escape the clutches of Plessy and still supply a principled rejection of lone dissenter Justice John Marshall Harlan’s impassioned defense of a “color-blind” Constitution. They can do it, and for two reasons. Plessy‘s first fatal mistake was its willingness to run roughshod over the public/private distinction. Plessy allowed the state not only to operate segregated public schools, but also to segregate private railroad cars and ban marriages between people of different races. The last two decisions are an affront not only to the colorblind principle, but also to the principle of freedom of association. Those two components mark Plessy‘s illiberal roots, and (parenthetically) explain my long and determined opposition to Title VII of the Civil Rights Act of 1964. That act applied the colorblind principle into private employment, where its chief negative consequence was to slow the adoption of private affirmative action programs in the late 1960s, when they were most needed. The state should be kept on a short leash when it seeks to regulate private businesses. Plessy‘s second major blunder was in not acknowledging systematic abuse. In principle, the level of discretion extended to any public body in its management role necessarily depends on the level of abuse inherent in its operation. Unfortunately, Plessy refused to recognize that the illicit white domination of the political process � think of the grandfather tests for voting � tainted all its political decisions, by giving individuals of one race undeserved power to control the educational destinies of the excluded racial minorities. The rampant danger of wholesale political abuse legitimates the need for far higher levels of judicial scrutiny than the Plessy court was ready to tolerate. Harlan may have been dead wrong about the infinite generalizability of the “color-blind” principle. Yet he was 100% correct to perceive that racial minorities needed strong protection against systematic abuse. Lower the standard of scrutiny Times of course have changed, with massive electoral reform. The clash of political interests before local governments is not likely to generate ideal solutions to educational problems. Just about everyone cares about race to a degree that the chief justice finds incomprehensible. But so long as every group sits at the table, the right response lies in lowering the standard of judicial scrutiny, as it is both less urgent and more difficult to protect against good-faith error than against bad-faith bias. Here is one piece of strong evidence that the chief justice is simply too rigid in defining the objective in equal protection jurisprudence in race cases as “stopping segregation.” Notwithstanding the colorblind command of Title VII, every conscientious private institution manages racial issues in a comprehensive and systematic way. To my knowledge, no institution uses its discretion to adopt segregationist policies. These private plans, borne of identity politics, offer a real benchmark for testing the legitimacy of the various state programs. Nothing done in either Louisville or Seattle goes beyond those private race-conscious solutions. Why then throw a monkey wrench in the public sector? To be sure, even responsible political deliberation in public school districts will frequently falter in the absence of the intense competition found in the private educational market. But any cure lies not in Roberts’ misguided application of the strict-scrutiny standard, but on the aggressive promotion of vouchers and charter schools to break the public school monopoly. Undercutting the bloated and monolithic nature of public schools offers the best promise of greater experimentation and improved racial relations. Richard A. Epstein is a professor of law at the University of Chicago and a senior fellow at the Hoover Institution.

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