Round-Up
Jonathan Hafetz, writing at the Huffington Post, weighs in on detainees’ habeas corpus rights here. Also in the Huffington Post, Jayne Lyn Stahl discusses the role the Supreme Court plays in keeping executive branch power in balance in this article.
Seth Rosenthal of Slate has this piece on judicial activism.
Tony Mauro of the Legal Times has this article on the school integration cases.
In the Washington Post, Robert Barnes covers Justice Scalia’s speech last week to the Northern Virginia Technology Council in this article.
Finally, Vikram David Amar has this essay on the Supreme Court’s Carey v. Musladin ruling at FindLaw.
The article by Tony Mauro (on the school racial-preference cases) seems to be virtually the same as an earlier article he wrote in the Legal Times.
Mauro’s article sympathizes with racial preferences in student assignment, even while recognizing that the Supreme Court is likely to declare them unconstitutional.
But that sympathy is based partly on a faulty assumption.
He assumes that “integration” means that each school in a school system is racially balanced, by using race if necessary.
But the Supreme Court has never accepted that definition of integration. In fact, it has said that “racial balance is not to be achieved for its own sake” (Freeman v. Pitts (1992)) and that “racial balancing” is “patently unconstitutional” (Grutter v. Bollinger (2003)).
The real meaning of integration, and desegregation, is made by John Rosenberg, who wrote a letter in response that was published in the Legal Times.
Rosenberg points out the parents’ challenging the use of race in the cases pending before the Supreme Court are seeking the same thing that the plaintiffs in Brown v. Board of Education were seeking: the right to attend a neighborhood school without being excluded on the basis of race.
Rosenberg points out that “the complaint of Linda Brown, the Topeka third-grader who gave Brown its name, was that she was barred from attending her neighborhood school and forced to attend a distant school because of her race. Ethel Louise Belton, the 10th-grader whose case was consolidated with Brown’s, was also assigned to a school nine miles away in Wilmington, rather than allowed to attend a school a short walk from her home, because of her race. Even less well remembered is that Swann v. Charlotte-Mecklenburg Board of Education (1971),” commonly cited in support of race-based busing, actually “began when James Swann was not allowed to attend the school closest to his home because of his race.”
Rosenberg’s above letter in the Legal Times can be found at http://www.law.com/jsp/dc/pov_letters.jsp .
Seattle’s use of race isn’t likely to achieve a melting pot or teach students that race is only skin deep, as Justice Stevens thought might be the result of racial diversity in his dissent in the 1986 Wygant case (where the Supreme Court barred a school board from using race in faculty selection, which the school board argued would promote “diversity” and provide minority role models).
Indeed, since the Seattle Schools publicly claim that “concepts such as a melting pot” are failures, it is likely that students will take away from Seattle’s use of race the lesson that race matters and that race is not skin deep, contrary to Justice Stevens’ rationale for using race in his Wygant dissent. That is especially true given that the Seattle Schools have themselves depicted students as members of competing racial groups rather than as individuals, publicly claiming that “individualism” is a form of “cultural racism.”
Beneath John Rosenberg’s letter in the Legal Times is one from Seattle school teacher Rick Nagel, explaining how the Seattle Schools’ use of race actually undermines integration.
Rick Nagel notes “that Seattle established an African American Academy knowing that it would be segregated;” and “that Seattle’s plan lets each student make two racial designations and change either at any time,” in order to manipulate the student-assignment process; “that two high schools, each more than 90 percent nonwhite, may actually become more segregated; that the oversubscribed schools are already integrated by any common-sense understanding;” and “that whites and nonwhites are denied unique educational opportunities based on their race and are acutely aware of that.”
Thus, Seattle’s use of race stigmatizes students and contributes to a “politics of racial hostility.”
Seattle’s use of race doesn’t serve a remedial purpose. No court has ever found Seattle’s schools to be segregated. Local institutions, like the University of Washington’s law school, already had black students at the beginning of the 20th Century, even though few black people lived in the northwest back then.
The mere fact that certain schools in Seattle may have more whites, and others may have more minorities, doesn’t make them segregated or discriminatory.
A school can’t use race to remedy mere racial “imbalances”; it can only use race to remedy its own intentional discrimination. People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997)(must show purposeful discrimination); see Wygant v. Jackson Board of Education, 467 U.S. 276 (1986) (school board cannot use race to offset societal discrimination, although it can use race to remedy its own discrimination).
And the intentional discrimination a school board seeks to remedy by using race must be recent, not discrimination in the distant past. See Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) (14-year old discrimination is too old); Hammon v. Barry (D.C. Cir. 1987) (similar).
Comment by Hans Bader — December 20, 2006 @ 3:12 pm