On Monday Gordon got to make his case, and a majority of Justices may agree with him. As desegregation orders are lifted across the country and school districts struggle to remain integrated, Justice Ruth Bader Ginsburg pointed to a potential paradox of the Jefferson County suit. "What's constitutionally required one day gets constitutionally prohibited the next day?" she pondered. "That's very odd." But the newest members of the Court, Justice Samuel Alito and Chief Justice John Roberts, seemed skeptical of such open-ended social engineering. And Justice Anthony Kennedy, who could be the swing vote in this case, worried about the Supreme Court letting a school district that is no longer under court supervision use skin color as a basis for student assignment. Such a precedent, he said, "takes us on a very perilous course."
The heart of the Jefferson County case and a similar one involving the Seattle school district that was also argued before the Court on Monday is whether or not a district can actively try to balance the racial composition at its schools. Fifty-two years after Brown v. Board of Education decreed an end to separate but equal schools, residential segregation persists, and with it a reluctance among many districts to switch to a neighborhood school system. Seattle and Jefferson County both allow parents to apply for their choice of school, and the vast majority of parents in these districts get what they want. But some don't. And since skin color is one of several factors including which school the child's siblings attend and how close the family lives to a particular school that determine how students are deployed across these districts, the question before the Court is whether schools can take race into consideration or whether the Equal Protection Clause requires them to be color-blind.
One of the major philosophical disagreements among the Justices was whether these integration policies fall under the rubric of "affirmative action." Ginsburg and fellow Justice David Souter argued that neither district's policy amounts to affirmative action because every student is guaranteed a seat somewhere in the district and because the schools within it are roughly equal. "No one gets left out of the system," Ginsburg said. Souter added that "the principal benefit is the education, not the choice of schools." But Justice Anthony Kennedy responded that that rationale was like saying "everybody can have a meal," but only some "can get the dessert." Roberts pointed out that "everyone got a seat in Brown as well."
There was also much scrutinizing of jargon. Justice Antonin Scalia questioned the districts' use of the terms "segregation" and "racial isolation." "If you belong to a country club that has 15% black members, I would not consider that a segregated country club," he said. "You're complaining about a lack of racial balance."
Souter was equally troubled by exhortations from Gordon and the Solicitor General that school districts should seek "race-neutral" alternatives. "At the end of the day, the object is... the achievement of racial mixture," Souter said. "Why do they have to hide the ball?" Candor, he suggested, is better than some clumsy proxy for achieving integration.
Scalia pointed to the problem in both districts of dividing students into only two categories, with no distinction made for Latino, Asian-American or multi-racial students. "What if a particular child's grandfather was white?" he asked. "There are many people of mixed blood." When told parents are allowed to self-identify with a particular racial group, Scalia said that that "seems like a big loophole."
Gordon began his argument by saying that all his plaintiff, Crystal Meredith, wanted to do was walk her son around the block to kindergarten. But Justice Ginsburg quickly interrupted with a question that suggested this entire case might not have been necessary: Why had Meredith waited until August, four months after the March deadline, to submit her choice of school? "I think she was living in Florida," Gordon said. The lawyer representing the school district did not challenge Meredith's standing to represent all parents of Jefferson County students. Instead, he used Meredith to counter the Solicitor General's claim that the students there get trapped in a particular school because of their skin color. Although Meredith's transfer request was not granted the first time around, her son got into her school of choice as a second-grader. Regardless of where Meredith's son ended up, Gordon wrapped up his argument with a description of the Equal Protection Clause. "That's on neutral parchment with black ink," he said. "There's no percents. There's no box to check."