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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 28, 2007 ::
    The honesty factor in the discussion of Parents Involved, never likely to be very high, has started out low indeed, with the New York Times headline calling the Seattle and Louisville programs "integration plans." That assumes a fact in dispute: whether these two school districts were in fact trying to achieve integration, or whether their programs aimed instead at the related but crucially different goals of diversity or racial balancing.

    As a matter of using English in an explanatory rather than an obfuscatory manner, "integration" implies a previous situation of segregation, which the school district seeks to remedy.

    Justice Thomas argues that a racial balancing program is "integration" when, but only when, a state of previous segregation has been identified by a court and that court has ordered racial balancing as a remedy -- a "jealously-guarded exception" to the general rule against taking race into account in state action.

    One doesn't have to agree with Thomas all the way on this -- e.g., perhaps a status quo ante may have been segregation, and the present remedy may therefore properly be called integration, even without that judicial finding and remedial order -- but at a minimum, the race-conscious remedy must be in response to past segregation by the state actor that formerly segregated. In today's two cases it is undisputed that de jure segregation was never the case in Seattle, and that in Louisville, it was the case in times past, but has been adjudicated no longer to be so.

    Now if you want to argue that racial balancing is integration even without previous segregation, the Breyer dissent will give you a lot of help in doing that. But the New York Times doesn't argue this point at all: it assumes it, and writes its headline to reflect it, and to inculcate it into the many influential yet unreflective people who will read that headline (and perhaps only the headline) and assume they understand these cases because they "read it in the New York Times."

    And then it gives us a photo of Breyer looking like he's praying, and Roberts looking like he's saying "Get outta here." Breyer the prophet, Roberts the "umpire" calling the prophet out. Just happened to be the best pictures available in the Times's photo library....

    :: David M. Wagner 11:04 PM [+] ::

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