Roberts's Rules

The Roberts Court isn't wasting any time in respect of schools and race. With its grant of certiorari in a pair of cases involving race-based education policies, the Supreme Court signaled yesterday that it is willing to revisit recent decisions in order to re-inject some desperately needed clarity into the American legal system. The two cases the court will hear are Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education. The move has the potential to have an enormous impact, affecting public primary and secondary education across the country, and it comes not a moment too soon.

Of all the rulings to issue from the Rehnquist court in its last years, few were as perplexing as its 5-4 opinion in Grutter v. Bollinger, in which the court upheld race as a permissible factor in admissions decisions for higher education. Grutter arguably showed the high court at its worst, or at least at its most opaque. The justices' opinions were "expressed" through a flurry of concurring and dissenting opinions that made it difficult to understand who truly agreed with whom about what.

Once one waded through the marsh to the heart of the majority opinion penned by Justice O'Connor, one found an argument that made little sense. The court found that race could be a factor in higher education admissions, as long as it was not used as the "defining" factor in the decision, but the justices stopped short of clearly explaining what separates a defining factor from a non-defining factor. To top it off, they expressed their hope, based on nothing in particular, that such considerations would be moot in 25 years.

Grutter was cited by the judges riding the Ninth Circuit when they upheld Seattle's decision to use race as a consideration in running the district's public school choice program. Seattle operates 10 public high schools of widely varying quality, and students may choose to attend their preferred school. When, predictably, the good schools fill up, the district considers four factors, including race, to divvy up scarce slots. The Seattle case is one of the cases the high court has just agreed to hear.

It will also hear arguments in a case from Kentucky that will challenge Jefferson County's voluntary continuation of anti-segregation policies after the 1974 court order mandating the polices expired six years ago. According to the Associated Press, the district in 2001 began using a plan that includes race guidelines. A parent has asked the court to overturn, arguing that her son's district requires most schools to maintain a black enrollment of 15% and prevent it from going above 50%, as the AP summarized the case. "It's a quota arrangement," the wire quoted her lawyer, Ted Gordon, as saying. "The blatant segregation we once had is long gone."

This all appears to set up the Supreme Court justices to reconsider their ruling of just three years ago and, possibly, the court up to change its position on race-based educational policies. Of the five justices in the majority in Grutter, one, Justice O'Connor, has since retired and been replaced with a more conservative jurist, Justice Alito. There will also be the question of how the new ruling is reached. Justice Alito's appointment may have changed the numerical balance on this issue, but Chief Justice Roberts is trying to bring a new tone to the court. He recently told graduates of Georgetown Law School that he believes it's important for the court to reach as much consensus as possible by deciding questions that are as narrowly construed as possible.

This newspaper would like to think that the Chief Justice understands that a confusing ruling can be just as dangerous as a bad ruling since it forces lower courts to try to be mind-readers of the higher justices. The Rehnquist court's inability to express itself clearly was a source of chronic complaint, and Grutter is the epitome of the problem. Conservatives who supported Justices Roberts and Alito may be looking for them to vote to overturn Grutter, but the bigger question will be whether the new court can tackle as contentious an issue as race in a way that clearly explains what is, in fact, the law of the land.