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Race and the Roberts Court

The U.S. Supreme Court’s decision last Thursday to limit the use of race in public school integration programs will not halt integration entirely, but does create setbacks for communities aiming to promote diversity in public schools, says Charles J. Ogletree Jr., a Harvard law school professor.

“It will make people reluctant to bring forward claims [against segregation] for fear they will lack the evidence to make their claims legitimate,” Ogletree told the American Bar Association’s (ABA) National Conference for the Minority Lawyer on Friday.

When the decision came down, Ogletree was among a host of civil rights advocates, including three Brown v. Board of Education lawyers, who condemned the decision. But despite his opposition to the court’s ruling, Ogletree found an ally, Justice Anthony M. Kennedy, in the 5-4 majority.

In a lecture Friday morning Ogletree praised Justice Kennedy’s concurring opinion in the case, which limited but did not exclude race as a factor in alleviating segregation in public school districts.

“Kennedy captures race in an amazing way,” Ogletree said. “Kennedy is skeptical of the way race is used in these programs, but he is adamant that race is still appropriate and necessary to desegregation.”

Ogletree’s remarks on Justice Kennedy were coupled by an op-ed he authored in Friday’s Boston Globe. In the op-ed, Ogletree called Justice Kennedy’s concurrence a “small, and welcome, affirmation” of the ruling in Brown, the 1954 landmark case that overturned segregation in public schools.

“Kennedy’s opinion refuses to embrace the four-person plurality that race cannot be considered in seeking to achieve educational equality,” Ogletree wrote. “Now it is up to lawyers, civil rights and educational advocates, school districts and school boards to craft original, creative, and constitutional remedies to combat racial isolation and foster diversity.”

Ogletree’s lecture, titled Race and the Roberts Court, centered on the effect the recent confirmations of Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. have had on the court’s decisions.

For Ogletree, the voluntary integration ruling bore what he said have become the hallmarks of the new Chief Justice’s court.

“Roberts says he wants more uniformity, more consensus,” Ogletree said. “But the reality is that 33 percent of the court’s decisions are 5-4. That is unprecedented in recent history.”

Conference attendants generally agreed with Ogletree’s position on Thursday’s ruling.

“We were worried there would be no hope, but fortunately there is some in Justice Kennedy,” said Kay Hodge, chair of the ABA Commission on Racial and Ethnic Diversity in the Profession. “The challenge now is for lawyers of color to redouble their efforts to fight for diversity in schools and other public entities.”

Walter R. Stone, an attorney at a New England business law firm, said Ogletree’s credibility in his profession helped legitimize his stance.

“He has a very rare view,” Stone said. “And he’s old enough and he has the experience to make it viable.”

–Derek Hawkins


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