Toobin: School ruling 'a victory for conservatives'

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WASHINGTON (CNN) -- The U.S. Supreme Court on Thursday struck down public school choice plans in Seattle, Washington, and Louisville, Kentucky. The court ruled the two cases relied on an unconstitutional use of racial criteria, reflecting the deep legal and social rift over the issues of race, affirmative action and education.

CNN's Tony Harris spoke with CNN legal analyst Jeffrey Toobin about the court's decision.

HARRIS: You saw this coming on affirmative action, didn't you?

TOOBIN: Boy, Tony, 15 minutes ago the Supreme Court was at war with itself in a drama that is rarely seen inside that room. You had two justices basically shouting out, not literally, but talking about the very premises of what it means to be an American. That was what was at stake in the court today. And the drama and the anger and the passion was something that's rarely seen in that courtroom.

Chief Justice John Roberts saying that the students who didn't get -- the white students who didn't get the school of their choice in Louisville and Seattle were equivalent to the black students in Brown v. Board of Education who were denied access to integrated schools in Topeka, Kansas. [Justice] Stephen Breyer responding, "You have got to be kidding me, that the efforts in good faith of these schools in Louisville and Seattle to integrate their schools, to make sure that there's diversity, how dare you compare that to the discrimination of Jim Crow?" It was a fascinating illustration of just how divided this court is at this point.

HARRIS: And the school systems in question weren't talking about a 50/50 balance, were they? They were just talking about meeting a threshold of about 15 percent of balance, diversity in the schools.

TOOBIN: Actually, very few students were actually affected by this program.

HARRIS: It's a narrow decision here.

TOOBIN: In these school plans, the vast majority of the students in both Seattle and Kentucky got their first choice. They got to choose. But a handful of students were not given their first choice because in Kentucky the school wanted to make sure -- the school board wanted to make sure that no school had fewer than 15 percent minorities or more than 50 percent minorities. That was the balance they were trying to achieve. And Stephen Breyer said, fine, there's nothing wrong with that. That's exactly what school boards should be allowed to do. But the majority of the court said no; that was the use of race; that was a violation of the equal protection of the laws and the Constitution is colorblind. That's what the majority view was. I think a lot of school boards will now have to re-evaluate their policies if they consider race at all.

HARRIS: Do you believe that's the way it's going to play out? When I say narrow, we're talking about a few slots here that were at question. Do you think that will lead to school systems around the country re-evaluating programs?

TOOBIN: I do, absolutely, Tony. Because what this court said was even though only a few slots were determined by race, that's too many. You just simply can't consider race in deciding which school which kids go to. Justice [Anthony] Kennedy, who was the swing vote, said maybe possibly you could do it sometimes. But clearly the message of the court majority here is that race is out as a consideration in school assignments. A lot of districts still use it and are considering using it, and they're going to have to change.

HARRIS: Do you predict the majority view of this is a decision that is going to be a setback for affirmative action in this country?

TOOBIN: Absolutely, absolutely. This is a decision that says school districts cannot use any racially -- racial factors to decide how to assign kids. This is a victory for conservatives. Justice Breyer used a phrase, "Never in the history of the court have so few done so much so quickly." And he was talking about Chief Justice Roberts and Justice [Samuel] Alito making this court a far more conservative institution in just one year. And at that phrase, "And never have so few done so much so quickly," both Justice Alito and Chief Justice Roberts looked over at Breyer and went, whoa, that's pretty personal by the standards of the Supreme Court.

HARRIS: I think we had a sense even when we were talking about it earlier this morning this could reverberate and be huge.

TOOBIN: Absolutely. This is going to rank with the great, important school desegregation opinions of the court's history, starting with Brown v. Board of Education in 1954. This, of course, is one where the school districts were told they couldn't integrate their schools, so coming from the opposite direction. In fact, Justice Breyer read a series of opinions where he said this opinion goes in the exact opposite direction.