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.

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.

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.

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?

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.

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.

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.