That according to Chief Justice John Roberts during oral arguments in the racial assignments cases from Louisville and Seattle (via Discriminations).
The interesting part of the above linked story from the Los Angeles Times comes here:
No students have been excluded from school because of their race, responded Michael Madden, the school board’s lawyer. They may be assigned to a "different [but] basically a comparable school."
"Everyone got a seat in Brown as well," replied Roberts, referring to the landmark decision that struck down racial segregation. "But because they were assigned to those seats on the basis of race, it violated equal protection."
Madden disputed the comparison between forced segregation and voluntary integration. "Segregation is harmful" to students, while integration "has benefits," he said.
One can assume that the parents of the children who were "voluntarily integrated" against the parents' wishes are still searching for the benefits.
It looks like enough of the justices are skeptical of the Seattle and Louisville plans to overturn them. Even using the tortured logic of the Grutter and Gratz decisions, it's hard to see how assigning schools based on race is anything other than racial discrimination.
I would love to have witnessed the arguments made by the attorneys on this one, particularly Madden, the attorney for the Seattle schools. When Chief Justice Roberts asked, "How is this anything but separate but equal?", it would have been fun to see Madden try to tap dance around the question.
In truth, the 14th Amendment bars discrimination based on race. Brown v. Board confirmed this central premise that "separate but equal" isn't. It's difficult to see how assigning students to schools based on their race is anything but racism.
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