The Left is in a state of hysteria about two recent landmark Supreme Court decisions that were announced at the end of the current term. This is the Left’s typical reaction to any attempt by the current Court, under Chief Justice John Roberts’ leadership, to restore some sanity to constitutional jurisprudence and to protect its core values.
The case that has been most severely condemned by the mainstream press and Democratic Presidential candidates alike deals with the issue of race-based criteria for assignment of children to a particular public school. The other case has to do with the extent to which the government can regulate political speech under the guise of protecting the electoral process from the ‘corrupting’ influence of money expended by so-called powerful special interests for political ads close to Election Day. Both opinions, written by Chief Justice Roberts, were decided by a 5-4 vote.
The public school case involved two school districts in Seattle and Louisville that elected to use race as the deciding factor in making assignments of children to over subscribed elementary and high schools. The case turned on the question of whether any individual student can be denied the same right of school choice available to other students residing within the same school district solely on the basis of his or her race. The Court said no, using a strict scrutiny test that has long been the lynchpin of cases applying the Fourteenth Amendment’s equal protection clause to discrimination based on race. This strict scrutiny test requires proof of a compelling governmental interest to justify any race-based discrimination against an individual by a governmental body such as a public school board.
The most compelling interest to justify such action, of course, is for a governmental body to remedy the effects of past intentional segregation for which that body, or its predecessor, was responsible. Nothing in Justice Roberts’ opinion changes this formulation. Any school district that is currently operating under a court-ordered integration plan to remedy the lingering effects of past de jure (state-imposed) segregation will be able to continue operating under that plan for as long as it is needed.
However, both school districts involved in this case decided to apply race-based assignment criteria to force a student against his or her will to attend a particular school when there was no court-ordered integration plan in effect that required the district to do so. The Seattle schools were never segregated by law in the first place, nor subject to court-ordered desegregation. The desegregation decree to which the Louisville schools were previously subject had been dissolved.
While there may be a compelling governmental interest in fostering student body diversity, the school districts had not demonstrated that denying a student the same choice of schools available to his or her other fellow students solely on the basis of race was the only means to accomplish that objective. As Justice Roberts declared in common sense prose: “The way to end racial discrimination is to stop discriminating by race.”
Indeed, there are many factors that may contribute to a lack of student body diversity, including socio-economic demographics that divide residential communities by class. Racial imbalance today often accompanies, and is a function of, such broader socio-economic patterns. Thus, making school assignments with an eye toward mixing students from different socio-economic strata would enhance the goal of fostering equal opportunity for all, and further racial integration at the same time. But unlike assignments based on race, it would not preclude a poor Asian or white child from participating in that diversity experience solely because of his or her race.
This is not a “radical” decision – the characterization chosen by the New York Times. Nor does it in any way involve “ordering the public schools to become more segregated” as the New York Times falsely charged. Brown v. Board of Education, the seminal case which held that the separation by state law of black and white students into different schools was inherently unequal, remains the law of the land. Nothing in Brown sanctioned compulsory assignment of students based on their race by government bureaucrats in Seattle or Louisville to achieve their aspiration of the perfect racially balanced classroom for its own sake.
Indeed, like Brown itself, Justice Roberts’ opinion emphasizes the core of the equal protection clause of the Fourteenth Amendment that provides the constitutional underpinning for equal opportunity for all citizens, irrespective of race. The Constitution is color-blind in the sense that it does not permit the government to be used as an instrument to impose injury on someone solely because of his or her race, except in the most extraordinary of circumstances. Racial harmony is not served when race is used as an exclusionist tool against innocent individuals by policy-makers in order to achieve a particular numerical race balancing not required to remedy past state-imposed segregation.
Instead of continuing such a zero sum game, the better course is to build magnet schools near economically disadvantaged areas, increase school funding, hold teachers and administrators accountable for the quality of education in their schools, and provide vouchers to enable parents of children in failing schools to vote with their feet.
Justice Roberts’ Court also came under heavy attack from the Left when it rejected populist arguments for unduly curbing freedom of speech during a political campaign. Thankfully, the Supreme Court again showed its fidelity to the Constitution and came down “on the side of protecting political speech rather than suppressing it.”
The case involved a portion of the Bipartisan Campaign Reform Act of 2002 that prohibited the funding of certain issue ads by corporations or unions. These ads focused on a position taken by a political candidate on a public issue but did not expressly endorse or oppose his candidacy. Nevertheless, the campaign finance law had been applied to prohibit the broadcasting of such ads within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate is running. Justice Roberts’ majority opinion said that this went too far in the direction of an impermissible restraint on the constitutionally protected right of free speech.
The First Amendment of the Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” There are no qualifiers, particularly when it comes to political speech which the Founding Fathers regarded as essential to the notion of a government of the people, by the people and for the people. It is counter-intuitive to expect that Congress could permissibly ignore this primary objective of the First Amendment and regulate political speech during the precise time when the people are most focused on political issues – during campaigns for elective office. By its terms, the First Amendment protects individual and collective speech in this regard. In order for a restriction on this right to survive a constitutional challenge, it must pass the same type of strict scrutiny test that is applied to race-based discrimination – it must be narrowly tailored to serve a compelling governmental interest.
Congress’s rationale for curbing issue ads close to an election is that too much money is flooding political campaigns and having a corrupting effect on the electoral process. But why should broadcasters and newspapers – who are often owned by corporations – have free rein to advocate for or against a candidate in their editorials right up to Election Day while individuals who believe in a particular cause cannot “assemble” together to independently sponsor the broadcast of a political message on the same terms?
If too much money in politics does tend to corrupt the process as the drafters of the Bipartisan Campaign Reform Act of 2002 believe, there are less restrictive ways to combat this threat than banning its use altogether as we get closer to an election. Full public disclosure of the identities of all donors and strict enforcement of truth-in-advertising regulations are reasonable alternatives.
The Left is not happy with Justice Roberts’ decision because they do not want any competing ideas to threaten their own political agenda.
For the same reason, they are seeking to suppress conservative talk radio shows through onerous regulations requiring ‘balanced’ content of liberal and conservative points of view on every station. If they get their way, bureaucrats would be peering over every show’s transcript to make sure there is equal time devoted to all sides of every issue. Stations will switch to bland music formats to avoid the hassle – precisely what the Left wants to achieve so that they can put popular conservative commentators like Rush Limbaugh and Sean Hannity out of business.
The result the Left is looking for is political censorship by the backdoor. Justice Roberts’ answer is a straight-forward reminder of the core value of free expression contained in the words of the Constitution itself: “we give the benefit of the doubt to speech, not censorship. The First Amendment’s command that ‘Congress shall make no law . . . abridging the freedom of speech’ demands at least that.”
Equal protection under the law and freedom of speech are among our most precious liberties. As we celebrate our nation’s independence, let us hope that the Supreme Court continues down the path it has set to guard these liberties with full vigilance.