Supreme Court case

An odd question from Justice Breyer in the Kentucky school desegregation case:

Here we have a society, black and white, who elect school board members who together have voted to have this form of integration. Why, given that change in society, which is a good one, how can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the black children out of the school?

I don't see any sense in which anyone asked the Court to "make them take the black children out of the school." In fact, the petitioner's lawyer in the Kentucky case specifically noted that "[t]here were seats within the school. It wasn't at capacity. It wasn't near any one of the percentages or tipping percentages that the quota system in Jefferson County public schools applied. But she was not allowed in." Assuming that this is true, the white plaintiff could have been let into the school without displacing any black children whatsoever.

And as to the future, the school would not be "tak[ing]" any "black children out of the school," or white children, for that matter. It would presumably be able to keep the same student body, but as for future admittees, it would merely have to run a different admissions process without using race as a factor.

Also note that in the companion Seattle case, the record showed that not only white students, but also 89 non-white students were denied admission to their first-choice school on racial grounds. One could thus describe the school board's policy as keeping blacks "out of the school," i.e., out of their first-choice school.

The same could be said of Louisville's policy. Consider this recent news story:

Deborah Stallworth and her son, Austin Johnson, 15, stand in front of Central High School Monday, Nov. 27, 2006, in Louisville, Ky., where he's a sophomore. Stallworth was unhappy when her son was initially denied admittance to his neighborhood school and instead assigned to a school across Louisville that would have required "busing my baby halfway to Timbuktu," as she recalls it.

Again, it seems very odd to describe the plaintiffs as trying to "make them take the black children out of the school." The current policies already do that, to some extent. What the plaintiffs in both cases seek is a race-neutral policy -- and this would mean that more white and black children would get to attend their first-choice school. Whether that's a good thing depends on whether you think personal choice is more or less important than integration.