Stanley Fish: History is at center of the court's ruling in the school race cases





[Mr. Fish is a Times guest columnist.]

On its face, the affirmative action case decided on June 28 by the Supreme Court turns on whether two school districts in Washington and Kentucky violated the 14th Amendment’s equal-protection guarantee when they assigned children to schools on the basis of race.

But the underlying issue is whether the court should be attentive to history and the societal consequences of its decision, or should turn a blind eye to those consequences and attend only to the principled protection of individual rights. The plurality opinion, written by Chief Justice John Roberts, strongly affirms the latter position, citing Justice Anthony Kennedy’s declaration (in Metro Broadcasting Inc. v. F.C.C., 1990) that: “Our Constitution protects each citizen as an individual, not as a member of a group.”

From this it follows that while groups may suffer disadvantages in the course of history, race-conscious efforts to ameliorate those disadvantages sacrifice constitutional principles, which are timeless, to the achieving of a result that is considered good by the ephemeral standards of the time.

Chief Justice Roberts acknowledged that the motives for race-conscious policies may seem benign, but he quoted Justice Sandra Day O’Connor’s admonition (again in Metro Broadcasting) that “ ‘Benign’ carries with it no independent meaning, but reflects only ... the current generation’s conclusion that a politically accepted burden, imposed on particular citizens on the basis of race, is reasonable.” By “independent meaning,” Justice O’Connor meant a meaning independent of history.

In dissent, Justice John Paul Stevens accused the majority of ignoring history and thereby obscuring what is at stake both now and when the 14th Amendment was passed. He is particularly incensed at Roberts’s invoking of Brown v. Board of Education (1954) in the concluding paragraph of his opinion. “Before Brown, schoolchildren were told where they could and not go to school based on the color of their skin.” Now, the chief justice said, it’s happening again....


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