Posted on July 2, 2007 Issues: Education & Title IX Judges

“Well, I can speak to the issue of diversity in education from a little bit of my own experience . . . having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class . . . So in that setting I have personal experience about the — how valuable having people with diverse backgrounds and viewpoints can be. And the Supreme Court has expressed the view that diversity is a compelling interest; having a diverse student body is a compelling interest.”

Associate Justice Samuel Alito, speaking at his confirmation hearings, December 12, 2006.

Last Thursday, Justice Alito became the fifth vote in a 5-4 majority decision of the Supreme Court striking down the methods used by two school districts to ensure that their students benefited from a diverse learning environment. Even more disturbing, he joined a plurality that invalidated the schools’ efforts to promote diversity by unfairly characterizing them as racial balancing. Had this portion of the plurality opinion garnered one more vote, the legacy of Brown – the promise to the nation’s children that they would go to school together, enjoy equal opportunity in education and learn from each other – would have been shattered. As it stands, the plurality opinion tarnishes the legacy of Brown and undermines its promise by purporting to follow it while ignoring its context and import. This is deeply disturbing for everyone who prizes the values of Brown and who took comfort in the new appointees’ assurances that they shared those values too.  And it is a sobering reminder of how important each judicial nomination is for women’s rights and civil rights.

Fortunately, a majority of the Justices disagreed with Justice Alito, Chief Justice Roberts, and Justices Scalia and Thomas. Justice Kennedy joined Justices Stevens, Souter, Ginsburg and Breyer in finding that school diversity and racial inclusivity is a compelling interest. While the most direct means used by Louisville and Seattle for advancing that interest are no longer available, the door has been left open for the use of other strategies and we encourage schools to make maximum use of this flexibility. The pursuit of that goal is important for all students, including girls, who benefit when exposure to diverse environments encourages students to reject race and gender stereotypes.

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