A New Perspective on Monday’s Arguments: Take 1
This entry was written by Andrew Pincus, an attorney at Mayer, Brown, Rowe, and Maw in Washington, DC; he authored an amicus brief in support of the school districts that can be found here.
This op-ed is Part 1 in a two-part series of perspectives on what Monday’s arguments tell us about what the outcome of the school integration cases may be. Later today, we will post the thoughts of Paul Beard of the Pacific Legal Foundation, who authored an amicus brief supporting the other side.
Reports on Monday’s arguments in the school desegregation cases (including Lyle Denniston’s post here) uniformly predicted that the Court is likely to invalidate the Seattle and Louisville plans, and, in addition, may be headed toward a rule barring any race-conscious measures relating to student assignment.
Although reading argument tea leaves is a perilous enterprise, I think the Court may be going in a somewhat different direction.
Perhaps the most critical interchanges of the day took place in response to Justice Kennedy’s questions about the permissibility of considering race in school siting decisions.
Justice Kennedy posited a situation in which a school board must build a new school. “There are three sites. One of them would be all one race. Site two would be all the other race. Site three would be a diversity of races. Can the school board, with the intent to have diversity, pick site number 3?”
The Seattle petitioner took the position that the Constitution barred the school board from basing its siting decision on the resulting racial make-up of the school. The Solicitor General, by contrast, responded that it “is permissible for the school to pursue” diversity by making such a race-conscious decision.
Justice Kennedy did not ask whether school districts could take the same approach in siting magnet programs – choosing a host school based on its racial composition (e.g., purposely locating the program in a predominantly minority school in order to attract white students). That, of course, is the very purpose of magnet programs. Given the close similarity of the decisions, the answers presumably would be the same.
Justice Kennedy also did not ask about a third technique used frequently by school boards: setting the boundaries of the residential areas that “feed” particular schools in order to maximize the racial diversity of those schools. Indeed, the district court in the Louisville case observed that “[r]acial demographics have influenced [Louisville’s] boundaries” for schools and that elementary schools were clustered “so that the combined attendance zones, assuming normal voluntary choices, will produce at each school student populations somewhere within the racial guidelines.”
If a school board can site a new school by considering the racial demographics of the residential areas that would send students to the school, it is hard to see why the same rationale would not permit consideration of race in drawing or redrawing lines for existing schools. There is no basis for distinguishing the two.
In terms of the strict scrutiny analysis, this line of reasoning would lead to an approach that (1) recognizes the school boards’ interest in promoting a diverse learning environment as a compelling one because of the important pedagogic and societal interests it promotes (indeed, there was little disagreement during the argument regarding the importance of the interest); and (2) concludes that some – but not all – race-based measures can satisfy the narrow tailoring test.
With respect to narrow tailoring, the key issue is what distinguishes race-based siting/line drawing decisions from the decisions challenged before the Court? Justice Kennedy commented that the latter involve “characterizing each student by reason of the color of his or her skin. That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.” Individualized decision-making with race as the sole criterion seems to be the element that triggers the greatest concern.
That discomfort is certainly understandable. Student-by-student decision-making carries the greatest risk of stigmatizing particular students by placing a societal imprimatur on using race to categorize individuals. That could be a reason, as Justice Kennedy intimated, to require a much stronger showing to justify use of such measures.
On the other hand, does the distinction between the two types of decisions really justify a different constitutional rule (as opposed to perhaps requiring somewhat more in the way of justification)? All of the school board decisions just discussed involve precisely the same result – the allocation of students to particular schools based on race. It is true that the siting and districting decisions do not target particular students – but they can get very close, as when the judgment whether to include a particular residential block in one school zone or another turns on the race of the students who live in that block. For those particular students, any distinction seems simply to be a matter of degree.
Treating these techniques differently could lead to unanticipated results. As I mentioned, Louisville utilizes race-based line-drawing, but also allows parents to choose a different school, and uses the racial guidelines to prevent those choices from leading to resegregation. Prohibiting that check might force school districts to eliminate parent choice to preserve the educational benefits of diversity.
Several Justices analogized to Brown in expressing their concerns about individualized race-based decisions. But the decrees issued in the wake of Brown – like the one in Louisville – almost universally included race-based student assignment plans. If that was a permissible response to further the compelling interest in eliminating de jure segregation, why is it also not a permissible means of achieving the compelling interest of promoting a diverse learning environment?
One reason could be the difference in decision-maker – district courts vs. school boards. But there is judicial review of school boards’ decisions, so courts could assess the legitimacy of the plan, both with respect to legitimate purpose (an inquiry that courts must undertake in a variety of contexts) as well as justification.
An interesting aspect of the argument was the attempt of each side to claim that its position was truly consistent with Brown. Petitioners argued that race-blind government decision-making was the legacy of Brown. In fact, Brown did not rely on that rationale. The Court concluded that de jure segregation imposed upon African-American children a badge of inferiority that prevented them from participating fully in society. Substantial evidence before the Court in today’s cases indicates that segregated housing patterns that produce non-diverse student populations have virtually identical ill effects.
Justice Breyer seemed to be invoking this point by his references to the Slaughterhouse Cases and what the Court said there about the meaning of the Fourteenth Amendment to the society that adopted it, which was (as Justice Breyer put it) “to take people who had formerly been slaves and their children and make them full members of American society.” That is the true promise of Brown, and that is the promise that the Seattle and Louisville plans seek to make real.
There is an important distinction between race-based CLASSIFICATIONS, which the school districts use and Mr. Pincus defended in his amicus brief, and merely being race-CONSCIOUS, which Justice Kennedy’s questions at oral argument suggested could be acceptable (such as strategically selecting a site for a new school so that both white and minority children will find it easy to attend, or setting up magnet schools open to all to prevent white flight).
Racial classifications like affirmative action are subject to strict scrutiny, unlike permissible race-conscious measures designed to promote racial mixing that do not treat individual students differently on the basis of their race, such as a school system’s choosing a site for a new school in such a way that it will have plenty of both white and black students.
A racial classification is subject to strict scrutiny regardless of the motive behind it; but a facially neutral decision, like choosing where to site a school, is not subject to strict scrutiny merely because school officials acted race-consciously in considering race as one of many factors in deciding where to put the school.
So held the First Circuit in Anderson v. Boston (1st Cir. 2004), applying the Supreme Court’s statement in Washington v. Seattle School District No. 1, 458 U.S. 457, 484-85 (1982).
That earlier Seattle case observed that a “racial classification” is subject to strict scrutiny regardless of the underlying motive for it, whereas a facially neutral decision (like where to site a school) is not subject to strict scrutiny unless it “was designed to accord disparate treatment” to one race or another. 458 U.S. at 484-85.
Thus, striking down the race-based student assignment policies of the Seattle and Jefferson County schools will not in any way undermine legitimate methods of achieving a racially-mixed student body, such as siting a new school where members of all races will be able to easily attend, or setting up magnet schools designed to prevent white flight.
Mr. Pincus denies that “race-blind government decision-making was the legacy of Brown.”
He is mistaken. That is exactly how Brown II describes Brown’s holding, emphasizing that “racial discrimination in public education is unconstitutional.” Brown II, 349 U.S. 294, 298 (1955).
Indeed, as Justice Kennedy observed in Richmond v. J.A. Croson Co. (1989), “the moral imperative of racial neutrality is the driving force of the Equal Protection Clause.” See also Miller v. Johnson, 515 U.S. 900. 904 (1995) (Equal Protection Clause’s “central mandate is racial neutrality in governmental decisionmaking”).
Schools can use race only as a temporary measure to counteract past segregation and achieve an integrated melting pot.
But they can’t use race forever based on a belief that members of different races have innately different characteristics that require each school to be racially balanced.
Yet that is what the Seattle Schools have done, engaging in rigid racial balancing even though “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (also noting that race cannot be used permanently, and that racial classifications must have sunset provisions).
Far from using race as a temporary means of promoting a melting pot, the Seattle Schools publicly denounce “concepts such as a melting pot” on their web site, calling them a failure.
They have treated students as members of competing racial groups rather than individuals, claiming that “individualism” is a form of “cultural racism.”
They have also engaged in offensive racial stereotyping, claiming that planning ahead (”future time orientation”) is a white characteristic that it is racist to expect minorities to exhibit.
They seek to use race because they think that racial differences are real and innate, rather than superficial and skin deep, thus requiring that each school be racially balanced in order to ensure that the same racial characteristics are present at each school.
That is racial balancing at its worst.
And given their professed hostility to the concept of treating students as individuals, rather than as members of competing racial groups, it is very likely that they will use race permanently if they are not enjoined from doing so.
So the case is not moot merely because the Seattle Schools have temporarily stopped using the challenged racial classifications during the litigation.
Comment by Hans Bader — December 7, 2006 @ 10:53 am
Mr. Pincus has zeroed in on the issue that concerns Justice Kennedy and should concern every member of the Court: that identifiable individuals were rejected from the school that they (and their parents) had determined best suited their needs, based solely on their race.
Two examples make the point:
On October 16 of this year, a young Japanese American who had recently graduated from the Gonzaga School of Law was sworn into the bar by Judge William Downing. He had graduated from Franklin High School in 1998 after taking courses in Law and Society and trial advocacy and competing in local, state and national mock trial competitions. In his junior year he was voted the most effective attorney at the state competition. Had he been subject to Respondent’s “Plan,” he would likely have not had the opportunity to be part of a program to achieve the district’s stated goal of “enabl[ing] him to reach his full potential” solely because of his racial classification (Asian American), even though he would have contributed to Franklin’s diversity because of the few Japanese Americans attending the school.
Andy Meeks is an example of a White student who might have found his life’s work, or at least a program that “enable[d] [him] to reach [his] full potential” as a result of participating in the Biotechnology Programs at Ballard High School but for the District’s unconstitutional use of a racial classification. He had flourished in a middle school honors program and been accepted for Ballard’s Biotechnology program contingent upon his enrollment in Ballard High School as a ninth grader. His request to enroll was denied, on the basis of his race (White), and that decision was affirmed by the Student Assignment Appeals Board, despite his being an Attention-Deficit-Hyperactive-Disorder (ADHD) child, for whom the program would encourage a “focus on concentration skills,” and for which he was recommended by his middle school principal “because of the standards set within the program and the hands-on activities built into the program. Ballard High School is also close to home, which Andy needs because of the support his parents have to give to him. Attending a school farther away from his home could result in discontinuity from (sic) home and school relationships.”
Andy Meeks’s case shows how difficult it is to overcome the effects of the racial classification: it operates analagously to the 20-point “bonus” given to African Americans, Native Americans and Latinos in Gratz that was struck down by the Court because it had the effect of precluding the relative merits of all applicants from being compared. While “merit” is not at issue in the use of Seattle’s Integration Tiebreaker, the message conveyed to Andy Meeks is that our Constitution is not color blind, that considerations of race can determine whether aspirations are realized, and the suspicion that this is not the last time that their government will deny them a benefit on the basis of their race.
The most important costs to the students of the District’s use of race are incalculable: the cynicism, anger, and sadness that result from the realization.
These costs will not be limited to those not assigned to their chosen school on the basis of race; they will manifest themselves even among those who are not affected by the Tiebreaker but merely aware of it.
This is far different than being assigned to a particular school because the attendance lines have been drawn with integration in mind: no identifiable individual can say that he had a compelling interest for assignment to a particular school solely because of his race. The fact that race may have motivated the drawing of attendance lines puts the categorization at one remove, takes the sting out of it, and is far less likely to result in the racial balkanization so cogently addressed by Professor Siegel in his recent Duke Law Review article.
Also there is no danger of the racial essentialism that the Court worries about in the redistricting context given that the socialization of young people is the compelling interest, not any assumption that people of the same race think or vote as a bloc.
When Justice Scalia asked “what criteria of race does the school district use,” he was given the answer that parents “self identify” children by counsel for Respondent. This is misleading: in fact ,the District allows students to designate two ethnicities and change them at any time, no questions asked. This protean concept of racial identity allows for its strategic deployment which, as a classroom teacher at Franklin high School for 36 years, I can assure you was employed in a not-insignificant number of instances.
No one contends that the Seattle’s Integration Tiebreaker is motivated by “illegitimate notions of racial inferiority,” a danger of racial classifications cited by Justice O’Connor in Croson, but “simple racial politics,” a second of her concerns, is another matter entirely.
The issue of who is entitled to use what, and how many, ethnic designations is fraught with the danger of nasty racial politics, particularly when even those identifying themselves as bi-racial, and thus legitimately entitled to use whatever ethnic classification is to their advantage, are therefore eligible for any school in the district, while White students are limited in their choices. Imagine the furor if White parents advocated “leveling the playing field” by putting bi-racial students to their choice of ethnicities and not allowing it to be changed without cause being shown! This is certainly the “simple racial politics” cited by Justice O’Connor in Croson.
Comment by Rick Nagel — December 7, 2006 @ 11:44 am
This note touches on something that I find most intriguing (and disagree with several Justices about): the idea that Brown I stood for race-blind decision making in every context. The Brown opinion was unlike any other equal protection decision. Its emphasis on sociology reflected, as Alexander Bickel said, “a striving for fidelity to a true line of progress.” I can’t imagine the Warren Court would be happy with the Solicitor General using Brown to attack a plan that promotes diversity and attempts to break the social stigma attached to segregated schools (whether they are officially segregated by the government or unofficially segregated by housing patterns, wealth distribution, etc.).
Comment by Scott Street — December 7, 2006 @ 12:26 pm
The excesses of the Seattle school assignment system have been well documented, and I see little chance that the Court will uphold that system. But Andy Pinkus raises a good point that I don’t believe has been adequately addressed by those who support the plaintiffs in these cases.
How can you uphold race-conscious school district line-drawing decisions — designed to ensure racially “balanced” schools — without conceding that school districts have a “compelling interest” in mixing students by race? I recognize (as Hans argues)that there is a major difference between race-conscious line-drawing and school placement on the one hand, and race-based assignments of individual students on the other. But isn’t the distinction really based on an understanding that the first type of activity qualifies as narrowly tailored while the latter does not? It is hard for me to imagine that the Court will endorse Hans’s position that the first type of activity is so benign that it does not even merit strict scrutiny, despite being explicitly race-based. I just read the First Circuit decision on which Hans relies (Anderson v. City of Boston), and I saw nothing in my (admittedly quick) reading that endorses the idea that race-based school assignments are unobjectionable so long as they do not focus on any individual student. Rather, the First Circuit found that the Boston school-assignment system was not at all based on race.
The Supreme Court has on occasion (e.g., Feeney)distinguished between intentional discrimination vs. mere awareness of the consequences of one’s actions. The Court has held that evidence of the latter is generally insufficient to prove intent. Thus, a decision to site a school at a particular location should not be deemed race-based merely because school officials were aware that the result would be to create a racially balanced school, so long as that was not the reason that officials decided to build the school where they did. But Justice Kennedy was not getting at that type of situation; rather, he seemed to be endorsing allowing school officials to site schools and draw lines precisely because they want to achieve racial balance.
So I am afraid that if the Court ends up endorsing race-conscious line-drawing, it will do so by recognizing the existence of a compelling government interest in racially balanced schools. The result will still be a loss for Seattle (and probably Kentucky as well), but the plaintiffs’ victory would be shallow. School districts would likely respond to the decisions by saying: (1) you see, we were right, we do have a compelling interest in racial balancing; and (2) our racial balancing system is just fine because we don’t do any of the crazy things they did in Seattle.
I hope that is not the result. While I have little objection to allowing school districts to take race into account when drawing boundaries, I am afraid that a decision recognizing a compelling interest in racially balanced K-12 schools will lead to more race-discrimination in the name of balancing, not less. But if the Court goes the way Justice Kennedy is suggesting, I am not sure what alternatives the Court has.
Comment by Richard Samp — December 7, 2006 @ 12:27 pm
I am black and while I see the point of racial stigmatization in the AA
context as articulated strongly by Justice Thomas, I do not see it here. As far I am concerned this case turns on whether or not you believe the constitution is a suicide pact. There is no evil created by state requiring racial integration, to suggest otherwise is the
highest level of intellectual dishonesty. The only harm here and a great harm it would be, would be to say to schools, you cannot integrate
because we all know what happens in this country
when races segregate. Anyone who has ever moved between segregated sections of our
society knows the truth of this. There is no stigmatization here, second to say the means cannot be more narrowly tailored given the objective is racial integration, is a pipe dream. My position is that a constitution is inherently a suicide pact, and even
though racial integration at the k-12 level is one of the most important
things the state can do to help our society while creating in my opinion
creating zero negative consequences, and only preventing really
harmful ones. Furthermore I think the Scalia’s and the Thomas’s in this case are being very intellectually dishonest. I think the historical evidence is clear, that when the drafters wrote the amendment they clearly had in mind anti-caste amendment as opposed to a race neutral. However I think the logic of text better supports, race-neutral. So I think the originalist position would be to support these measures, and those would be in line with Justice Jackson pragmatist position. Since however, I am a textualist, and a firm believer that the constitution is the breadth and width, regardless of pragmatic concerns, and in my view the race-neutral way of reading the text is the most logical, then schools should be enjoined, even though now no harm comes from their action, and serious harms would result from enjoinment, however those harms are irrelevant.
Comment by chris myco — December 7, 2006 @ 1:27 pm
I think Richard is right – it is purely semantics to distinguish being “race-consciousness” and “race-classification”. In order to be conscious of race, you first have to classify someone. In order to comile the demographic data that would drive a racial balancing site selection process, some agent of the government had to classify you by race, and that answer had an impact on the result. Even though your personal involvement probably did not change the final selection, your contribution to an aggregate score is still an individual race-based classification, which sounds like it should be subjected to strict scrutiny.
However, consider something like BiDil, the drug that was proven to reduce deaths of African-Americans in heart failure by 43% (yes folks, there are biological differences between races besides skin color). The FDA wisely approved this drug for African-Americans only, a clear racial classification. Should this decision be reviewed under strict scrutiny as well?
Comment by Ben Kennedy — December 7, 2006 @ 1:32 pm
The difference between the Seattle plan and the previous one that had the same objective but involved boundary changes or school pairings is that no discrete individual (e.g. Andy Meeks and the Japanese American student to whom I referred in my earlier post) leaves the process feeling that his aspirations, accomplishments and/or special circumstances have been superseded by considerations of race (even though students are not directly compared on their respective “merits”).
The potential for racial balkanization is greater in these circumstances. This, when combined with Seattle’s allowing students to list two racial/ethnic categories (thus advantaging bi-racial children one of whose designations is “white,” enabling them to attend any school in hte city) and change either or both at any time, for any reason, with no questions asked, invites the “racial politics” that concerned Justice O’Connor.
Comment by Rick Nagel — December 7, 2006 @ 3:16 pm
Presumably, the Court took both cases, instead of only one, because it felt that there were potentially important distinctions between Louisville and Seattle. Often when the Court takes two cases on the same issue, even if their differences are subtle, the court comes to different conclusion, or at least comes to the same conclusion for different reasons, in each case.
Louisville has a history of being subject to a desegregation order. Seattle does not. Does that matter?
I could see a decision that might invalidate both plans, but impose a weaker legal standard on Louisville than it does on Seattle, with the former being something that could be met with a modest tweak, and the latter being almost insurmountable.
The notion that “race conscious” decision making that doesn’t actually use formal racial classifications might be formally endorsed, at least in some contexts (e.g. to prevent backsliding from prior desegregation orders) certainly would be one way to do this.
Comment by Andrew Oh-Willeke — December 7, 2006 @ 7:24 pm
I find the last comment sound and think something like that is conceivable. If so, it would be interesting who would be the fifth vote.
Comment by Joe Paulson — December 9, 2006 @ 1:07 pm
Ben Kennedy: However, consider something like BiDil, the drug that was proven to reduce deaths of African-Americans in heart failure by 43% (yes folks, there are biological differences between races besides skin color). The FDA wisely approved this drug for African-Americans only, a clear racial classification. Should this decision be reviewed under strict scrutiny as well?
Yes.
The drug does not target African-American-ness; it targets a gene that results in a nitric oxide deficiency.
Race, in and of itself, is at best a crude placeholder for explaining genetic differences. There can be a greater prevalence of genetic patterns in one population, but that doesn’t mean these gene patterns are not present in other groups.
There are non-African Americans who would benefit from the drug and there are African-Americans who would not benefit from it (and who would experience the same adverse effects as most non-African-Americans). So limiting the prescription or sale to African-Americans is bad science.
Anyone who could benefit from the drug should have access to it and no one it would harm should be prescribed it, just as no race is singled out and stigmatized by these voluntary programs.
Comment by Jacques McKenzie — December 9, 2006 @ 5:38 pm