Visiting Fellow Edward Blum

Republican and Democratic presidential candidates reacted as one would expect last April after the U.S. Supreme Court handed down a victory to opponents of partial birth abortion. Each of the GOP contenders--including pro-choice Rudy Giuliani--enthusiastically applauded the Court's decision, while every Democrat blasted it as the first chop on the Roe v. Wade log. Another important Supreme Court opinion is due by the end of June--this one to determine if school districts can sort and assign K-12 students to different schools in order to maintain an ideal racial balance. It will be interesting--and more importantly, instructive--to see how the Republicans react to this decision.

At issue before the Court is a pair of cases from Seattle and Louisville in which both school systems classify children by race and ethnicity and assign them to various schools in order to maintain a fixed racial balance.

In the Louisville case, for instance, this meant Crystal Meredith's white, four-year-old son Josh was denied admission to his neighborhood elementary school because too many white children were in attendance there. He was forced to take a 90 minute cross-town bus ride to a school in need of more white kindergartners. The Meredith family sued the school district claiming the system violated the Equal Protection Clause of the Fourteenth Amendment.

If Louisville's school assignment policy sounds familiar it's because it's a mirror image of another case decided by the Supreme Court in 1954--Brown v. Board of Education. In that case, Linda Brown, a black seven-year old living in Topeka, Kansas, wasn't allowed to attend a neighborhood school because of her skin color and was forced to walk a mile through a railroad switching yard in order to catch a bus to an all-black elementary school.

So, the key question the court must resolve now is whether policies designed to achieve proportional racial integration in a schools' student body should be allowed even if it causes some children to be excluded from certain schools because of their skin color.

For those who attended the oral arguments at the Court last December, it appeared the answer from five members was a resounding "no." Justice Kennedy, in particular, expressed his skepticism of the concept of beneficial racial discrimination by remarking to the lawyer representing the Seattle school district that "outright racial balancing" of the kind used by Seattle was "patently unconstitutional." He inquired, "Isn't that what you (Seattle) have here?. . . You are choosing each student by the color of their skin."

After badly botching their briefs in the University of Michigan affirmative action cases in 2003, the Bush administration finally got it right with these cases, arguing, correctly, that the Constitution very clearly--and strictly--forbids "good" and "bad" racial classifications and policies except for the most extraordinary and critically important reasons.

Without a doubt, if the high Court strikes down racial balancing in K-12 school assignments, the reaction from the Democrats and their allies will be loud and furious. Already some left-leaning and racial advocacy groups are circling the wagons in anticipation of a loss, claiming Brown v. Board of Education is about to be nullified with a neo-"separate-but -equal" régime poised to replace integration. Ted Shaw of the NAACP legal defense fund, for example, was quoted as saying a loss "would be a reversal of historic proportions."

He's wrong, of course, but if past is prologue much of the media will characterize the opinion as a nail in the coffin of school integration. It will provide the Democratic candidates--especially Sen. Obama who voted against both John Roberts and Sam Alito--a stage to howl with indignation.

It's always dicey predicting how the Court will rule in any case. But if the opinion goes against Seattle and Louisville, the Republican candidates should be as enthusiastic here as they were with the partial birth abortion decision. Yes, it won't be as easy; after all, a significant majority of the electorate is against partial birth abortion, while opinions are more mixed and nuanced when the issue turns to race. Nonetheless, this case will be the first, long overdue step in restoring the law to the timeless ideals enshrined in the Civil War amendments--equal treatment under law. No one said it better than Chief Justice John Roberts in a dissent he authored earlier this year: "It is a sordid business, this divvying us up by race."

Opposing the racial-advocacy groups takes stout political courage. Too often Republicans try to split-the-baby or completely run away from issues like affirmative action and racial gerrymandering. More than ever, conservatives need a leader who won't duck this issue. Let's take note of how the GOP field handles the decision, regardless of the outcome. This is no time to go squishy.

Edward Blum is a visiting fellow at AEI. He is at work on an AEI Press book on the Voting Rights Act.