Phill Brand: Sotomayor's race reversal

Barring a "complete meltdown," says Lindsey Graham (R-SC), Judge Sonia Sotomayor will be confirmed as the first Latina to serve on the Supreme Court. The important backdrop of these hearings, however, isn't the nominee's ethnicity; it is how the courts have emphasized race and ethnicity, particularly in schools,

Last month the Supreme Court overturned a decision in which Sotomayor participated and upheld complaints by white firefighters (and one Hispanic) who said their rights to equal treatment were violated when the city refused to promote them because no black firefighters scored high enough on the same tests to earn a promotion. The city's claim to have made a "race neutral" decision to promote no one, noted columnist George Will, was the "predictable price of failing to simply insist that government cannot take cognizance of race."

Of course the government does take cognizance of race, particularly when it comes to education. Consider again New Haven, the site of Yale law school, Judge Sotomayor's alma mater.

Its public school system is disproportionately minority (87 percent black or Hispanic) and only 11 percent white. In 1996, the Connecticut Supreme Court ruled that the state's racially isolated schools violated the Connecticut Constitution.

In response, New Haven opened magnet schools, dramatically increased school funding, and ramped up a variety of inter-district programs to reduce racial and economic barriers. New Haven schools spent a lavish $17,000 per pupil in 2007-2008, more than the state.

The race-conscious programs and influx of cash didn't work. New Haven schools are plagued by low test scores: 44 percent of students were proficient in math and 51 percent in reading, and falling.

The No Child Left Behind law has found the district is in need of improvement four years in a row. And the achievement gap between black and white, rich and poor students in Connecticut is the largest of any state in the country.

Does a persistent achievement gap mean a school system's policies have a "disparate impact" on minorities? If so, what would Sotomayor's "race neutral" solution be?

The reality is that there is no easy fix for the cluster of cultural and economic problems-poverty, racial isolation, broken families-that plague the poorest urban areas. These problems are compounded by school systems that are massively dysfunctional.

The courts have tried their hand at crafting solutions, including forced busing, judicial oversight, mandatory spending increases and a complex system of racial quotas and magnet schools.

In June of 2007, the Supreme Court adopted a more modest posture. It ruled in Meredith v. Jefferson County School Board that Louisville, Kentucky's efforts at promoting racial-integration violated the 14th Amendment's equal protection clause.

Louisville required that between 15 percent and 50 percent of the population at every school be minority. But Chief Justice John Roberts rejected the plan, writing in a plurality opinion, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The court withdrew from directing schools' policies because decades of experience demonstrated the futility of that endeavor. Judicial intervention had often turned integration into a numbers game, with counterproductive results.

Rigid and heavy-handed policies handed down from on high had usurped local authority and dissolved neighborhood bonds. What does Sotomayor, who served on the board of the Puerto Rican Legal Defense and Education Fund for 12 years, while the organization represented minorities in education and other discrimination cases, make of those lessons?

Whether it's dealing with firefighters or school children, the Supreme Court has decided, by a one-vote majority, that making decisions based on race is not the answer. That welcome new chapter is the context in which the Sotomayor hearings proceed. If she becomes the next Supreme Court Justice, Sotomayor ensures that the debate over race will grind on in the nation's schools.

Phil Brand is director of Education Watch at the Capital Research Center.