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1. Wouldn’t the strongest statement, perhaps in a dissenting or concurring opinion, in support of Seattle and Louisville’s plans be to argue that everyone agrees that racial classification is O.K. as a remedy, and that a school district shouldn’t have to wait to be sued to provide a remedy?

   Some cities (you would dissent if you believed that these were among them, or concur if they were not, based on the record below) could argue that pervasive de facto segregation caused by illegal private conduct has caused the school system to be segregated, and that to pre-empt a desegration lawsuit, a plan was adopted.

   Comment by Andrew Oh-Willeke — December 7, 2006 @ 7:10 pm

2. Jason,
   In saying that “[i]t is possible that the four most conservative justices will author concurring opinions calling for the overruling of the Court’s 2003 twin decisions” in Grutter and Gratz, are you implying that you don’t think that Kennedy would to join an opinion overruling Grutter, notwithstanding that he was a dissenter in that case? What’s the rationale there?

   Comment by Simon Dodd — December 7, 2006 @ 8:04 pm

3. I was struck by that as well. While Kennedy has disappointed conservatives many times, he does have his good sides. In particular Kennedy has been 100% consistent in his views on the equal protection clause from Croson in 1989 to Metro in 1990 to Aderand in 1995 to Grutter in 2003. I’d be shocked if pulled a flip here.

   I actually Roberts would be most likely to abstain from overruling Grutter. His joining Breyer in the Vermont case last year was not exactly a good signal and he’s let out signals about not being bold, respecting precedent, etc…

   I think this case will be 5-4 to strike both plans. I doubt Grutter will be reversed since it wasn’t really raised. Instead, it will be distinguished and only remain relevant in a Graduate School context which makes it largely meaningless.

   Comment by rufus peckham — December 7, 2006 @ 8:12 pm

4. I don’t see a desegregation rationale for the school districts’ use of race, as Andrew suggests above. Thus, their use of race is unconstitutional.

   No court has ever found the Seattle Schools to be segregated; and Jefferson County’s schools have been declared unitary.

   The fact that some schools in these school systems may have more minorities, and others more whites, does not make them segregated, since racial balancing is not to be sought for its own sake (Freeman v. Pitts (1992)), and indeed, “racial balancing” is “patently unconstitutional.” (Grutter v. Bollinger, 539 U.S. 306, 330 (2003)).

   The claim that Seattle’s schools are not integrated “rests upon the ‘completely unrealistic’ assumption that” students of each racial group should be represented in each school “in lockstep proportion to their representation in the local population.” Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).

   As Justice O’Connor once observed, “It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988).

   Even if private discrimination were occurring in Seattle (say, in housing), that would not be grounds for Seattle’s schools using race.

   Under strict scrutiny, the government can use race only to remedy its own past discrimination, not societal discrimination, or discrimination by private parties, unless it is complicit in such discrimination. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).

   No one suggests that the Seattle or Jefferson County school districts are participating, actively or even passively, in any discrimination in housing in their respective jurisdictions.

   Moreover, even a history of discrimination by the government itself cannot justify the use of race now unless the discrimination is recent. See, e.g., Brunet v. Columbus, 1 F.3d 390 (6th Cir. 1993) (discrimination that occurred 14 years ago does not support affirmative action today); Hammon v. Barry (D.C. Cir. 1987) (similar).

   So the fact that someone may have threatened to sue the Seattle Schools for discrimination in the 1970s is no justification for allowing them to use race today.

   Comment by Hans Bader — December 7, 2006 @ 9:33 pm

5. This characterization of Justice Ginsburg’s argument as promoting the doctrine of “separate but equal” is among the most ridiculous and demeaning statements I have ever read. While I disagree with their arguments, I can at least respect those people who support the petitioners by saying that the government should never consider race when setting school enrollments. But to equate a school system’s voluntary use of race to diversify its student body to the noxious concept of “separate but equal,” which was by definition anti-diversity, sullies the legacy of Brown I.

   Comment by Scott Street — December 8, 2006 @ 11:41 am

6. Hans, is it really true that “the government can use race only to remedy its own past discrimination, not societal discrimination, or discrimination by private parties, unless it is complicit in such discrimination.”?

   You cite a school case. But, surely, states have the authority, which is part of its broader authority to regulate the conduct of private parties to regulate private conduct for the purpose for ending racial discrimination, even when it wasn’t complicit in creating that discrimination in the first place.

   And, surely, some of those measures could be race conscious. For example, a state could require realtors and landlords to collect race specific information to aid it in enforcing private housing discrimination laws. A state court could likewise order a real estate firm to take race conscious means to make up for its own past discrimination.

   Of course, almost every state government is intimately involved in funding K-12 education. School districts are not completely separate from state governments.

   Why shouldn’t a state government be able to provide remedies through the school funding part of its budget, when it could do so through other parts of its budget?

   Comment by Andrew Oh-Willeke — December 8, 2006 @ 12:34 pm

7. In response to Andrew’s question:

   It really is true that a school district can only use race for remedial purposes based on its OWN past discrimination, not private discrimination by members of the general public (such as housing discrimination in the area in which the school district operates) in which it is not complicit.

   That’s exactly what Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), held: a school district can use race to remedy GOVERNMENTAL discrimination, but not SOCIETAL discrimination.

   Moreover, a school district’s ability to use race to remedy even a history of GOVERNMENTAL discrimination is limited. It cannot use preferences to remedy discrimination by other state actors in the same state. See Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996) (state law school could not use racial preferences to counteract allleged discrimination in Texas’s K-12 schools).

   So the fact that a school district is part of a larger state government does not mean that it can use racial preferences to offset the effects of discrimination that is allegedly occurring elsewhere in the state.

   Nor can a school district use race to remedy a history of discrimination by it that occurred in the distant past. See Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) (14-year old discrimination was too old to support affirmative action); Hammon v. Barry (D.C. Cir. 1987) (similar).

   So the fact that someone may have threatened to sue the Seattle Schools for race discrimination in the 1970s is no justification for its using race now.

   As Andrew notes, localities certainly have the power to respond to private discrimination by BANNING such discrimination. But they can’t respond to private discrimination by ENGAGING in it themselves.

   The mere fact that a school district’s schools have “racial imbalances” owing to demographics does give it license to use race, since “racial balancing” is “patently unconstitutional,” Grutter v. Bollinger, 539 U.S. 306, 330 (2003), and “racial balance is not to be achieved for its own sake.” Freeman v. Pitts (1992).

   Imbalances are not discrimination, since the use of race as a remedy in the school setting requires a showing that the school district PURPOSEFULLY discriminated against minorities in the past. People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997) (school’s use of race was invalid since it was in response to a racial disparity not caused by purposeful discrimination against minorities).

   The fact that a ban on discrimination may itself be race-CONSCIOUS (such as requiring the collection of racial statistics to diagnose the existence of racial discrimination, or requiring the elimination of a useless selection criterion that has a disparate impact on minorities, and does not predict job performance) does not make it a race-PREFERENCE or racial CLASSIFICATION.

   As the First Circuit observed in Anderson v. City of Boston (1st Cir. 2004)(citing Washington v. Seattle Sch. Dist. (1982)), there is a difference between being race-conscious and using racial classifications.

   The former is not as suspect as the latter.

   So the race-conscious measures that Justice Kennedy pointed to at oral argument — such as strategically siting a school where it is likely to be attended by both whites and minorities, or setting up a magnet school that is likely to diminish white flight — would not be rendered unconstitutional by a ruling that the Seattle Schools’ use of race in student assignment is unconstitutional.

   Comment by Hans Bader — December 8, 2006 @ 1:05 pm

8. “But, surely, states have the authority, which is part of its broader authority to regulate the conduct of private parties to regulate private conduct for the purpose for ending racial discrimination”

   Are you saying the state could punish someone because they don’t have some particular set of attitudes about people of other races? That seems to be the logical endpoint of the line of thinking that the government can regulate private conduct to fix race relations.

   Comment by Ben Kennedy — December 8, 2006 @ 1:24 pm

9. Regulating private conduct to fix race relations is common place. It is what the laws banning discrimination in employment, public accomodations, housing and banking already do. States, moreover, do not have to have the interstate commerce hook for such regulation that the federal government is required to have (although that is itself little more than a fig leaf).

   This does not prohibit someone from having a set of attitudes about people of other races. But, it does prohibit someone from acting in economically meaningful ways upon those attitudes. If a hiring official in a law firm, or a realtor, or an apartment building manager makes decisions in the course of those employments based about attitudes about people of other races, even if otherwise, that person would have complete and absolute sole discretion to make those decisions, the law firm, realty company or apartment building owner will be liable under civil rights laws for this private conduct. Moreover, the law firm, realty company, or apartment building owner in those contexts, could constitutionally be compelled by a court to engage in race classification to remedy its prior discriminatory act, even if the offending individual in the organization was promptly fired, and everyone else in the organization did not share those improper motives.

   Realistically, it is at the very least idiotic from the point of future liability for civil rights violations to give anyone who has racially discriminatatory attitudes any meaningful economic decision making authority.

   I thank Hans Bader for his comprehensive statement of authority on the issue of whether one state instrumentality can be employed to remedy through use of racial classification, a racially discriminatory act of another state instrumentality.

   Whether the Hopwood case should be followed by the Supreme Court as a matter of constitutional law is, of course, open to debate. The notion that federal law relief should depend upon the particular internal bureaucratic structure a state chooses to adopt, is not terribly compelling. I think there is a very solid argument that authorizing a Hopwood style remedy it is at least within the 14th Amendment’s grant of legislative power to Congress.

   The mere fact that a school district’s schools have “racial imbalances” owing to demographics does give it license to use race, since “racial balancing” is “patently unconstitutional,” Grutter v. Bollinger, 539 U.S. 306, 330 (2003), and “racial balance is not to be achieved for its own sake.” Freeman v. Pitts (1992).

   No method of remedial action (even if barred by Hopwood), necessarily fits within the Freeman v. Pitts category of racial balance for its own sake, although something very close to this notion was upheld in the University of Michigan Law School case, which read together with the twin undergraduate case seems to have the U.S. Supreme Court saying that racial balancing is O.K. as long as it is subtle and nuanced, in practice, if not in precise phraseology. In both those cases, the justification for the practice was that it was educationally beneficial, and not that it was remedying past wrongs.

   The race conscious v. racial classifications distinction also raises an issue of its own. Is it, or should it be, legal to use racial classifications to compensate for past race conscious actions of a school board. As I read Hans Bader, the answer seems to be “no”, although it isn’t entirely clear why this is, or must be the case.

   Comment by Andrew Oh-Willeke — December 8, 2006 @ 3:45 pm

10. During the oral arguments, it was noted that this particular question has not been addressed. IOW, past precedent is not fully controlling. The attempts above to suggest otherwise, notwithstanding. This includes various citation of appellate case law, including Hopwood, which was specifically not heard by the SC on appeal. If anything, the affirmative action cases that later were called into question some of its analysis. Suffice to say such cases, as noted, found a compelling state interest beyond remedying past discrimination. I’m somewhat unsure why it cannot be applied here. Of course, Justice Kennedy was no fan of those rulings. He voiced distaste for them in his questioning. But, this is another matter.

    I note Wygant was a plurality opinion. “JUSTICE POWELL announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and JUSTICE REHNQUIST join, and in all but Part IV of which JUSTICE O’CONNOR joins.” This makes sense, since it struck me at first that Justice White — who supports race-conscious policies in various cases — concurred. He particularly noted: “Whatever the legitimacy of hiring goals or quotas may be, the discharge of white teachers to make room for blacks, none of whom has been shown to be a victim of any racial discrimination, is quite a different matter.” This is not the case here. This is partially why a conservative leaning judge in the Ninth Circuit found the policy acceptable. I’m sure he knows the case law as well.

    As to Freeman, Kennedy wrote the opinion. It noted: “Yet it must be acknowledged that the potential for discrimination and racial hostility is still present in our country, and its manifestations may emerge in new and subtle forms after the effects of de jure desegregation have been eliminated. It is the duty of the State and its subdivisions to ensure that such forces do not shape or control the policies of its school systems. Where control lies, so too does responsibility.”

    As to “racial balancing,” the quote should be put in context. “That there was racial imbalance in student attendance zones was not tantamount to a showing that the school district was in noncompliance with the decree or with its duties under the law. Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.”

    More is said about this concern of federal courts superceding local control. The ruling is not about local boards not being allowed to do this voluntarily. The matter is simply not covered though it might be interpreted that way. Again, these two cases being heard are novel questions respecting SC case law. As Stevens suggests in Wygant, simplistic across the board rhetoric can lead to error here.

    Comment by Joe Paulson — December 9, 2006 @ 12:43 pm

11. A school district can only use race to remedy its OWN past discrimination, not private discrimination by members of the general public (such as housing discrimination in the area a school district serves) in which it is not complicit.

    That’s what I noted above, citing Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), which held that a school district can use race to remedy GOVERNMENTAL discrimination, but not SOCIETAL discrimination.

    Joe Paulson points out that the language I cited was from the PLURALITY’s opinion in Wygant, and that Justice White, concurring, did not join that opinion. Thus, he suggests that the principle I cited does not command a majority on the Supreme Court, and is not binding on lower courts.

    But the Wygant plurality opinion WAS incorporated into the subsequent Croson decision, Richmond v. J.A. Croson Co. (1989), in which Justice White DID join. Croson reiterated that a local government can only use race to remedy its OWN discrimination, or discrimination in which it was a PARTICIPANT, not societal discrimination (even discrimination that occurs within its borders).

    Thus, a school district cannot use race to offset racial imbalances that do not result from its own intentional discrimination. People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997).

    “Racial balance is not to be achieved for its own sake,” Freeman v. Pitts (1992), and “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003).

    Moreover, any remedial rationale for using race is simply non-existent in the case of the Seattle School District.

    Seattle’s schools have never been segregated (nor have most local Seattle institutions; the University of Washington had black students back in 1900), and its schools are diverse even without using race in assignment.

    The Ninth Circuit upheld Seattle’s use of race based on deference to local governments, effectively placing a heavy burden on the plaintiffs to shows the unconstitutionality of using race.

    But deference to local governments is at odds with strict scrutiny, as the Supreme Court made clear in Johnson v. California (2005), where it refused to give any deference to state prison officials to use race, despite the fact that they receive broad deference in almost every context besides using race (such as receiving broad deference from the courts when they restrict inmates’ free speech rights).

    The Supreme Court in Wygant v. Jackson Board of Education (1986) did not defer to the school board’s finding that it needed to use race to provide faculty diversity and minority role models. It struck the school board’s use of race down.

    Even Justice Stevens, in his dissent, did not give the school board broad deference; he conceded, in passing, that the school board had the burden of proving the need for its use of race (one area in which he agreed with the plurality).

    Moreover, deference only makes sense when the official a court is deferring to has wiser or more expert judgment than the court itself.

    That’s not true for the Seattle Schools.

    Far from using racial mixing to teach that race is merely skin deep — as Justice Stevens advocated in Wygant — the Seattle Schools use race based on the exact premise.

    They have rejected the integrationist “melting pot” advocated by Justice Stevens in Wygant for the race-obsessed, multiculturalist “salad bowl” advocated by leftwing academics.

    On their web site, the Seattle Schools denounce concepts such as a “melting pot” as failures. They have treated students as members of competing racial groups rather than as individuals, claiming that “individualism” is a form of “cultural racism.”

    They also claimed that planning ahead (”future time orientation”) is a white characteristic that it is racist to expect minorities to exhibit.
    (That crude racial stereotype is reminiscent of the arguments of African-American studies professor Leonard Jeffries, who distinguished between supposedly happy-go-lucky minority “sun people,” and evil, avaricious, planning-oriented “ice people” of caucasian origin).

    They also claimed only whites could be racist.

    Those statements show that many Seattle School officials support using race because they believe that members of different races have inherently different racial characteristics, such as whites being more inclined to plan for the future than minorities. In their eyes, that makes it important to racially balance the schools so that each school will have the same mix of divergent racial characteristics.

    That obsession with race illustrates that the Seattle case is not moot, despite the fact that the Seattle Schools temporarily suspended their use of race in student assignment after being sued.

    The above bizarre racial statements by the Seattle Schools have been documented in many newspapers (such as the Seattle Post-Intelligencer), by a syndicated columnist (George Will), and in court briefs (such as the amicus brief of the Competitive Enterprise Institute in Parents Involved in Community Schools v. Seattle School District No. 1).

    I also discuss them in the second of two letters to the editor in the Washington Post on Friday, December 8, 2006, entitled “The Case Against Racial Balancing Schemes” (pg. A38).

    Much has been said in the Seattle case about how social science evidence supposedly supports using race. Lots of sociologists and left-wing academics have joined amicus briefs urging the Supreme Court to allow schools to use race.

    It’s worth noting that the bizarre racial statements made by the Seattle Schools, such as claiming that planning ahead is a white characteristic and that individualism is racism, similarly are rooted in the beliefs of left-wing social “scientists” and academics.

    For example, the wackiest web page posted by the Seattle Schools is supported by a citation to the social science text Adams, Bell & Griffin, Teaching for Diversity and Social Justice, at pg. 1197.

    At the time of Brown v. Board of Education, many academics wrongly supported segregation based on the erroneous belief that there were innate differences between blacks and whites in terms of innate intelligence or level of development.

    Thus, deferring to social scientists about the purported need to use race threatens to tear a gaping hole in the Equal Protection Clause and its protections against racial discrimination.

    The Supreme Court can take judicial notice of the bizarre racial statements made by the Seattle Schools on their web site. Nebraska v. E.P.A., 331 995, 998 n.3 (D.C. Cir. 2003) (taking judicial notice of statements on agency’s web sites); cf. Washington Post v. Robinson, 935 F.2d 282, 291-92 (D.C. Cir. 1991) (judicial notice based on newspaper articles).

    Comment by Hans Bader — December 10, 2006 @ 2:09 pm

12. I think all 5 conservative Justices on the Court have more self-respect — and respect for their conservative jurisprudence (for example, originalism) — than to decide this case on the basis of “bizarre” websites of which notice is judicially taken.

    Comment by Jacques McKenzie — December 10, 2006 @ 7:46 pm

13. That seems to be the logical endpoint of the line of thinking that the government can regulate private conduct to fix race relations.

    If so, it’s the logical endpoint of the Thirteenth Amendment.

    Comment by Jacques McKenzie — December 10, 2006 @ 11:34 pm

14. Jacques:
    

    I think all 5 conservative Justices on the Court have more self-respect — and respect for their conservative jurisprudence (for example, originalism) — than to decide this case on the basis of “bizarre” websites of which notice is judicially taken.

    There are, at most, four conservative Justices on the Court, and only two of them are Originalists.

    Comment by Simon Dodd — December 11, 2006 @ 9:41 am

15. Jacques, are you saying that state can punish people for having some attitude about people of other races? My original posting was refering to thought, not action. A crime is a crime no matter what race a person is.

    Comment by Ben Kennedy — December 11, 2006 @ 9:42 am

16. Jacques, are you saying that state can punish people for having some attitude about people of other races?

    Sure. Try putting out an advert for renters that says “No Asians wanted in my building”.

    There are, at most, four conservative Justices on the Court, and only two of them are Originalists.

    Your nasty dig at Kennedy aside, there is no doubt that the man is a conservative. Even his supposed betrayal of conservative principles has a conservative pedigree. In Lawrence, he rejects socially conservative politics in favor of John Stuart Mill’s and Humboldt’s principles of liberty and limited enumerated powers, bedrock conservative principles. That makes five.

    As for only Scalia and Thomas being true originalists, that is irrelevant to my point that all 5 conservative Justices respect their collective conservative jurisprudence (including originalism). Rehnquist was a fair-weather originalist, but even so took steps to preserve originalist jurisprudence. I do not doubt that Roberts and Alito will invoke stare decisis far more often for originialist precedents than for ones written by Justice Stevens or during the Warren years.

    Comment by Jacques McKenzie — December 11, 2006 @ 10:48 am

17. “Sure. Try putting out an advert for renters that says ‘No Asians wanted in my building’”

    I am distinguishing between thought (”I don’t like Asians”) and action (”I will not rent to Asians”). It is the same distinction as being merely angry with someone and punching them in the face. My question is, is “fixing race relations” an issue of the former or the latter, or both? For all the talk about race in this country, I don’t think people have a really good idea as to what the problem is.

    Regardless, I don’t think that the thirteenth amendment that outlaws slavery and involuntary servitude can reasonably be construed to require someone to rent to Asians. This is why civil rights legislation needs to claim authority from the commerce clause, which is at least in the ballpark when exchanges of money are concerned.

    Comment by Ben Kennedy — December 11, 2006 @ 12:04 pm

18. In my comment above, I observed that the Seattle Schools’ continuing “obsession with race illustrates that the Seattle case is not moot, despite the fact that the Seattle Schools temporarily suspended their use of race in student assignment after being sued.”

    Jacques McKenzie questions the relevance of the Seattle Schools’ web sites, which deride being “colorblind” and attack the concept of a “melting pot” (and which previously attacked “individualism” as a form of “cultural racism,” and treated planning ahead as a white characteristic that minorities should not be expected to exhibit).

    Whether the case is moot depends partly on the present outlook of Seattle Schools officials, and whether they are likely to deviate from colorblind decisionmaking in the future, if the parents’ challenge to their prior use of race is dismissed as moot.

    (The Seattle Schools bear the “heavy burden” of persuading the court that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” See Adarand Constructors v. Pena, 528 U.S. 216, 222 (2000)).

    Their persistent attack on colorblindness, which has been carried on their web site for months despite the national controversy it has engendered, strikes me as highly relevant to their outlook on whether or not to use race in the future. And their attack on the concept of a melting pot strikes me as relevant to whether they intend to use race as a permanent means of racial balancing, rather than as merely a temporary transitional measure designed to promote a melting pot.

    I agree that not everything on a school system’s web site is of great probative value in assessing their present or future intentions.

    But the web page I quoted from above (attacking colorblindness and the concept of a melting pot) is not an obscure web site. It is one that has been extensively discussed, and criticized, in newspapers of record in Seattle. Moreover, it has been retained unchanged in the face of public criticism even as other web pages have been pulled by the school system in response to controversy. See, e.g., Debera C. Harrell, “School District Pulls Web Site After Examples of Racism Spark Controversy,” Seattle Post-Intelligencer, June 2, 2006, at B1 (2006 WLNR 9598870) (quoting the same language from the web page that appears there to this very day).

    As I noted above, a court can take judicial notice of the school system’s web pages. Nebraska v. E.P.A., 331 F.3d 995, 998 n.3 (D.C. Cir. 2003) (taking judicial notice of statements on agency’s web sites).

    Jacques McKenzie doubts that the “5 conservative justices” would consider the web page in deciding the case.

    It is true that conservative judges have been less willing to stretch the bounds of judicial notice in discrimination cases.

    For example, when the Sixth Circuit, in an opinion by a liberal judge, reversed a summary judgment in a favor of a Denny’s restaurant sued for discrimination, based on newspaper articles in which racism was alleged against completely different Denny’s restaurants, Judge Batchelder, a GOP appointee, dissented, rightly pointing out that relying on such hearsay-upon-hearsay was impermissible.

    But taking judicial notice of the Seattle School system’s web site is not stretching the concept of judicial notice at all. It’s a classic example of the proper use of judicial notice.

    Considering Seattle’s web page does not raise hearsay problems, because taking notice of it does not assume the truth of the wacky statements it makes, but instead simply recognizes that those wacky statements are in fact present on its web site, and takes that reality into account in assessing the philosophy and outlook of the school system that is making them (and obstinately clings to them despite controversy and the pendency of litigation).

    Comment by Hans Bader — December 11, 2006 @ 12:10 pm

19. But taking judicial notice of the Seattle School system’s web site is not stretching the concept of judicial notice at all. It’s a classic example of the proper use of judicial notice.

    I did not question the relevance of the websites; almost anything can be relevant under FRE 401. I noted that the Justices had more probative evidence. Stooping to such paltry evidence as those websites would be a sign of undignified weakness and lack of integrity.

    I am distinguishing between thought (”I don’t like Asians”) and action (”I will not rent to Asians”).

    Yes. And my point is your distinction is not the distinction the law makes, certainly not housing regulations promulgated under the authority of the Thirteenth Amendment. You need not actually refuse to rent to Asians. All you need do is print an ad for renters that says “I hate Asians and don’t want them in this building”.

    Regardless, I don’t think that the thirteenth amendment that outlaws slavery and involuntary servitude can reasonably be construed to require someone to rent to Asians.

    Obviously, you have never heard of the Fair Housing Laws. Nor have you scrutinized the Thirteenth Amendment very carefully. It has a section 2, which applies to future cases of slavery. Certainly, we can prevent present-day majorities from creating a present-day caste system with a different race than African-Americans at the bottom, can’t we?

    Comment by Jacques McKenzie — December 11, 2006 @ 3:29 pm

20. “Yes. And my point is your distinction is not the distinction the law makes, certainly not housing regulations promulgated under the authority of the Thirteenth Amendment. You need not actually refuse to rent to Asians. All you need do is print an ad for renters that says ‘I hate Asians and don’t want them in this building’.

    …

    Obviously, you have never heard of the Fair Housing Laws. Nor have you scrutinized the Thirteenth Amendment very carefully. It has a section 2, which applies to future cases of slavery. Certainly, we can prevent present-day majorities from creating a present-day caste system with a different race than African-Americans at the bottom, can’t we?”

    The authority for modern-era civil rights legislation is rooted in the commerce clause. Some of the reconstruction-era civil rights laws were rooted in the 13th, but there were striken based, in part, on the notion that the 13th does not ban racial discrimination by private parties. I don’t think its necessarily an unreasonable interpretation, and the court has seemed someone receptive in in the modern era (”Jones v. Alfred H. Mayer Co” 1968, “City of Memphis v. Greene” 1981). But it has also been hostile to the notion (”Palmer v. Thompson” 1971). I think the problem with it is in the implementation. Could Congress punish me for not inviting enough Black people to my Chirstmas party? Under this interpretation, yes.

    Comment by Ben Kennedy — December 12, 2006 @ 8:43 am

21. The authority for modern-era civil rights legislation is rooted in the commerce clause.

    While I am glad you have finally done some basic research on the Thirteenth Amendment, there is no treatise that denies it is a source of authority for the Fair Housing laws in this country. And while you are proud to proclaim the Commerce Clause as an infinite source of authority for judge-made law, not everyone shares your love of the Commerce Clause or believes its current scope, as construed by a finite number of tenured judges, is constitutional. If the Court were to punish you for not inviting enough people to your Christmas party, it would probably be under the Commerce Clause, which is precisely what is troublesome about the Court’s Commerce Clause jurisprudence and why so many current Justices of the Court want to pare it down. Section 2 of the Thirteenth Amendment, on the other hand, is a legislative grant of power, and so it is inherently limited by the politics of the Congress and the mood of the nation. I don’t see representative democracy as an illegitimate limit on the powers of government, but, apparently, you do.

    Comment by Jacques McKenzie — December 12, 2006 @ 10:40 am

22. grant of legislative power, rather

    Comment by Jacques McKenzie — December 12, 2006 @ 10:41 am

23. “While I am glad you have finally done some basic research on the Thirteenth Amendment, there is no treatise that denies it is a source of authority for the Fair Housing laws in this country. And while you are proud to proclaim the Commerce Clause as an infinite source of authority for judge-made law, not everyone shares your love of the Commerce Clause or believes its current scope, as construed by a finite number of tenured judges, is constitutional.”

    Hey Jacques, tone it down. I never said I agreed with using the commerce clause to justify civil rights legislation, I was just stating (as you know) how it is today. And the fact is that the court explicitly rejected your interpretation of the 13th when striking down the Civil Rights Act of 1875, which is why Congress invoked the commerce clause to prohibit dicrimination in “public accommodations engaged in interstate commerce”. I also am skeptical of using the commerce clause to justify such things, and I also skeptical of using the 13th for the same reasons. It would be preferable to offer a full Constitutional amendment, which probably would be ratified in this day and age.

    Comment by Ben Kennedy — December 12, 2006 @ 12:26 pm

24. And the fact is that the court explicitly rejected your interpretation of the 13th when striking down the Civil Rights Act of 1875, which is why Congress invoked the commerce clause to prohibit dicrimination in “public accommodations engaged in interstate commerce”.

    Please refrain from imputing to me a straw-man.

    I did not say “the Thirteenth Amendment = the current Commerce Clause jurisprudence,” though you seem to be reading my post with that (bogus)interpretation, which is why I took your assertion that “I think the problem with it is in the implementation” to mean “I think the problem with [using the Thirteenth Amendment to justify what is the current Commerce Clause jurisprudence] is in the implementation.”

    I rightly disagree with you to the extent I think the scope of the Commerce Clause in the civil righst arena has been inflated by the Court beyond what a proper interpretation of the Thirteenth Amendment would be. Quite aside from the nonsense argument you have imputed to me, I am making quite a different argument that the results the Thirteenth Amendment obtains include the Fair Housing laws and this case (which deals with segregated housing patterns), but not much of the Commerce Clause jurisprudence that you keep raising for no apparent reason.

    Comment by Jacques McKenzie — December 12, 2006 @ 1:08 pm

25. And, at no point did I say criminal penalties under the Thirteenth Amendment were constitutional. This post is about local school boards voluntarily distributing educational benefits in a way that counteracts segregated housing patterns, not about prosecuting people for vaguely defined crimes under the Civil Rights Act of 1875.

    Stop with the straw-men and red herrings.

    Comment by Jacques McKenzie — December 12, 2006 @ 1:25 pm

26. This is late, I know, but HB responded to my Wygant point. FWIW, I will say a bit more.

    I responded to the cite, but yes, Croson is relevant too. I see it too is partially a plurality, but don’t think that is relevant for our purposes.

    What is relevant is the type of program. The author of the opinion is telling — O’Connor years later underlined remeding past segregation is not the only compelling interest for race conscious programs. White’s vote in this case fits his concurrence in Wygant. The program was a racial set aside. He supported using race to promote diversity in other contexts.

    The case simply does not compel the result HB desires here. Again, lower ct cites don’t convince. The KY case particularly raises interesting concerns. It is therefore a bit troubling HB only responds to part of my post. The Pitts etc. quote seems relevant too. Again, the justices did not dispute when it was noted, including by one or two justices, that this was a novel issue.

    I do wish this thread was not so one-sided. The heart-felt, I’m sure, opposition to claimed racism notwithstanding. The rejoinder is that some sort of program that furthers diversity, maybe in a less blunt way as Seattle, lessens racism. Separation tends to further it.

    Comment by Joe Paulson — December 14, 2006 @ 1:38 am

27. I’ts very interesting reading all the legal arguments and comments on this case.

    I’m not an attorney. I’m just a mom. My daughter and many of her classmates were told that they could not attend three different schools because of their skin color. Our neighborhood kids were split up according to their race by the Seattle School District. White kids were told they couldn’t attend the neighborhood school and non-white kids were told they could. You have to live this scenario to truly understand how very wrong this policy is.

    The racial tiebreaker hasn’t been used in five years and our schools are still diverse. I read in a Seattle newspaper that the District’s test scores have been rising during this time. The sky has not fallen.

    Kathleen Brose
    President
    Parents Involved in Community Schools

    Comment by kbrose — December 15, 2006 @ 4:46 am

28. My daughter and many of her classmates were told that they could not attend three different schools because of their skin color.

    Did someone actually say this to your kids?

    Comment by Jacques McKenzie — December 15, 2006 @ 11:26 am

29. Jacques: I should have had the word “told” in quotation marks. A computer software program assigned kids to a school, taking into account the tiebreakers.

    -Kathleen Brose

    Comment by kbrose — December 15, 2006 @ 1:22 pm

30. How did your kids find out that their skin color caused the denial of admittance to a school of their choice? (I’m assuming, perhaps wrongly, the computers didn’t send a nasty e-mail to the kids…?)

    Comment by Jacques McKenzie — December 15, 2006 @ 4:09 pm

31. Jacques: We parents could do the math. We had an idea of how many seats were available at Ballard High School and how many kids were in the public and private middle schools who might want the seats. We anticipated there was going to be an assignment problem as early as November of 1999. We told the District that there was going to be a problem and they basically “told” us not to worry. We just didn’t think the impact would be so high. We figured it out when non-white neighborhood (Queen Anne and Magnolia neighborhoods) kids were assigned to Ballard High School and the majority of the white white kids were not. The kids were all talking about the assignment letter they received during Spring of 2000. The kids and their parents all received an official letter from the School District notifying them of their high school assignment. That was almost seven years ago. Once the lawsuit began,we became aware of the actual numbers of kids, both white and non-white, who were denied access to their choice(s) of school because of the use of the racial tiebreaker. Those are the numbers that are in the briefs.

    -Kathleen Brose

    Comment by kbrose — December 16, 2006 @ 1:26 am

32. “White kids were told they couldn’t attend the neighborhood school and non-white kids were told they could.”

    And, in other cases, non-white kids did not get in for racial reasons. In the oral argument, the ratio was something like 2:1, I’d think this should factor in that blacks are not 50% of the community, so yes, more whites would be involved.

    The program is in place for a reason. It uses various other criteria too. Thus, one kid might not get in because of their address, which often is not “voluntary” in various respects.

    And, there is a reason for the set-up. Excessive race separation causes problems. Other means were tried to achieve diversity and integration. The school district’s brief (available on the Supreme Court’s website) is telling on this pt. I’d add that I’m told by someone from the area with a connection to the schools (wife a teacher) that inequal funding also is a factor.

    Finally, the divisions here are not purely private. Historically, racial covenants and other state supported means split the races. So, some means, no means cost-free, are proposed to change matters.

    Comment by Joe Paulson — December 16, 2006 @ 7:44 pm

33. “We parents could do the math. … The kids were all talking about the assignment letter they received during Spring of 2000. The kids and their parents all received an official letter from the School District notifying them of their high school assignment. Once the lawsuit began,we became aware of the actual numbers of kids, both white and non-white, who were denied access to their choice(s) of school….”

    This is what I suspected. The Board sent each student a letter that identified their assigned school and that letter did not mention race. The parents whose children were denied their school of choice decided, in the absence of verifiable information, that their kids had been denied their school of choice because of race and filed a lawsuit alleging their kids had been denied their school of choice because of race. That is, the only people who racially stigmatized these children … were their parents.

    Comment by Jacques McKenzie — December 17, 2006 @ 3:51 am

34. Jacques: The kids were able to figure out on their own what happened, when they talked about their high school assignments among themselves. They knew the school district used a racial tiebreaker.

    Just curious. How old are you and do you have children?

    -Kathleen Brose

    Comment by kbrose — December 17, 2006 @ 6:48 pm

35. How old are you and do you have children?

    I’m 72. I have three wonderful grandchildren. Were you alive in 1954?

    They knew the school district used a racial tiebreaker.

    Since whether it is even a “racial tiebreaker” is in dispute, I don’t see how they “knew” that. And your statement that the kids knew it themselves contradicts your previous statement that the parents figured it out by doing the math. It also contradicts your statement that no one knew how the “racial tiebreaker” worked until the case had been filed and there had been sufficient discovery.

    when they talked about their high school assignments among themselves.

    Sorry to say I do not believe you. Given what you have admitted about the utter neutrality of the content of the letters and given that, according to you, both white and non-white kids were not given their assignment of choice, it doesn’t seem like homeroom conversations amongst kids who didn’t receive their assignment of choice would result in the awareness of some overall racial pattern. The numbers submitted to the Court include that the “racial tiebreaker” — amongst the many other tiebreakers used — only accounted for 2-3% of the denials. I don’t understand how the equivalent of water cooler gossip between teens could sort out the 97% of denials based on other factors from the 3% denials “based on race”. All the kids would know is that some kids — of varying skin color — didn’t get their school of choice. It doesn’t change the fact that the parents stigmatized their children by insisting, without verifiable information, that the only reason their kids were denied admittance was race and launching a lawsuit that exacerbated racial divisions in the area.

    Comment by Jacques McKenzie — December 18, 2006 @ 9:55 am

36. Jacques: I was born after 1954. All I can say is that you don’t know these kids or their parents or what they were thinking. I was there, and you weren’t. These kids and their parents don’t have to apologize for being informed about the school district’s assignment procedures. That’s called planning ahead. You only know what you have read in the briefs. The briefs are about the legal issues, as they should be. They do not contain every single detail as to why parents chose a particular school for their child. They do not contain the details of the academic,emotional and social needs of the kids involved. They do not contain all the details of the impact that school assignments have on a particular family’s dynamics. They do not contain the human emotion of this case, because you can’t put that information on paper. Our children are not robots that you can move around like chess pieces and expect success. Children don’t work that way, especially teen-agers, as you may or may not well know.

    I’m sure you will poke holes in whatever I have to say. We will have to agree to disagree. I do believe in and support public schools, and I wish for a great education for every child. Thanks for writing.

    -Kathleen Brose

    Comment by kbrose — December 18, 2006 @ 5:17 pm

37. I don’t understand how the equivalent of water cooler gossip between teens could sort out the 97% of denials based on other factors from the 3% denials “based on race”.

    An interested student could easily do a little research and figure out how the assignment policy worked. Once someone figured out what the tiebreakers were, it would be clear that race had something to do with the denials. That doesn’t seem outside the skill set of an interested 9th-grader.

    All the kids would know is that some kids — of varying skin color — didn’t get their school of choice. It doesn’t change the fact that the parents stigmatized their children by insisting, without verifiable information, that the only reason their kids were denied admittance was race and launching a lawsuit that exacerbated racial divisions in the area.

    An organization of parents wouldn’t necessarily be able to obtain such information, which is why the discovery process exists. If it turned out that the children were denied for other reasons, then the lawsuit would have been thrown out. I’m sure that Parents did not just due blindly.

    The fact of the matter is that some students were denied admittance based on their race. It walked like a duck and talked like a duck, and it seems that the Court will rule that it is a duck. Based on the facts of the case and the words of Ms. Brose, it also seems that the racial assignment patterns were fairly obvious in some neighborhoods. Because of the seriousness of racial discrimination, Parents had to file the suit as soon as possible to try and stop the use of the assignment plan.

    Comment by Christopher Battles — December 18, 2006 @ 7:44 pm

38. I’m sure that Parents did not just sue blindly.

    Actually, they did just that! They didn’t have sufficient data until the discovery stage: call it a fishing expedition. Furthermore, an easy way to get access to information on how a local school board is making decisions is to join the local school board and participate in it. Why are we congratulating these parents for short-circuiting democracy by dashing to the courthouse? If these parents had joined the school board or tried to run for election to the school board on a platform of changing the school board’s policy, that would be one thing. This lawsuit is another.

    The fact of the matter is that some students were denied admittance based on their race.

    Actually, that’s false. No one was denied admittance for any reason. Some students were denied assignment to a school of their choice.

    If it turned out that the children were denied for other reasons, then the lawsuit would have been thrown out.

    That’s neither here nor there. Cases of this type were denied cert for years at the Supreme Court (in other words, appeals of this kind have been routinely thrown out for years) — does that mean the Supreme Court necessarily committed a wrong by hearing this case once two new members were installed? It’s also the case that the district court — the same one that permitted the discovery and reviewed the facts — found against the parents. So, by your logic, the case is meritless.

    I was there, and you weren’t.

    Yes, and I was alive before 1954, and you weren’t. That’s how I know your case is nothing like Brown.

    Our children are not robots that you can move around like chess pieces and expect success.

    Except the ample discretion of local school boards is not in question. School boards will always be able to move your children like chess pieces. School boards will always be able to treat your children like robots. Even if you win, your local school board can still treat your kids like robots and move them around like chess pieces so long as it picks the right rationale. For example, eradicating socioeconomic disparity. What is at stake in this case is whether school boards can treat your children like robots and move them around like chess pieces to promote racial integration.

    [The briefs] do not contain every single detail as to why parents chose a particular school for their child. [The briefs] do not contain the details of the academic,emotional and social needs of the kids involved. [The briefs] do not contain all the details of the impact that school assignments have on a particular family’s dynamics. [The briefs] do not contain the human emotion of this case, because you can’t put that information on paper.

    Legal briefs usually have a facts section. And emotionally-laden facts are often discovered and admitted at trial, so they’re a part of the record. Whatever isn’t in the record or the arguments shouldn’t be considered in the adjudication of the case. If your problem with the assignment plan is emotional rather than legal, then perhaps you should have found an emotional outlet other than the legal system.

    Comment by Jacques McKenzie — December 18, 2006 @ 10:18 pm

39. Jacques:

    As Ronald Reagan used to say “There you go again”. You are assuming that we parents sued blindly. We attended several board meetings and offered public testimony both before and after the assignments. We contacted board members repeatedly to help change policy. We also tried mediation. I don’t remember seeing you there. The school board election next November, I plan to help vote off certain members and plan to donate $$ to people running against them. I’m even putting up yard signs. We already have two school board members who are suing the board. I’m not running for a position. Besides, my district member isn’t up for re-election.

    Regarding school admittance, even Justice Kennedy said in the argument “it’s like saying everybody can have a meal but only people with separate skin can get dessert”. I’d say that that was a fair analogy of the assignment system.

    I agree with Brown vs. The Board of Education. That was 1954 and now it’s almost 2007. No child should be denied access to a school because of their skin color. We are not fighting against integration or diversity. We are fighting against discrimination.

    I’m glad you recognize that the school district is moving our children around like chess pieces to promote racial integration. To meet their white and non-white racial balancing quotas, they have to deny some children access to certain schools based on their skin color. Isn’t that what Brown vs. The Board is all about? Our schools in Seattle are neither separate or equal. We have diversity without the use of the racial tiebreaker. I will agree that school funding and equity is an issue that needs to be addressed.

    Like I said before, the briefs do not have EVERY detail about the case in them. The depositions do have several of the details that I mentioned, and they are part of the record.

    I do believe that the justice system is an outlet here for us to address wrongs, both emotional and physical and sometimes financial.

    I’m going to be very non-politically correct and wish you a Merry Christmas! I’m too busy now to chat anymore. I’ll check the blog next week.

    Kathleen Brose

    Comment by kbrose — December 19, 2006 @ 5:33 am

40. Regarding school admittance, even Justice Kennedy said in the argument “it’s like saying everybody can have a meal but only people with separate skin can get dessert”.

    You mean assignment, not admittance. According to your school system, everyone has a right to admittance to a school. No one has a right to choose to which school they are assigned. In other words, there is no dessert. Everyone gets placed “against their will”.

    Kennedy’s argument makes no sense. There are no people with a separate skin — some of the kids denied their assignment of choice are black and some are white. Some who get their assignment of choice are white and some are black. Some of the desired schools are majority white and some are majority black.

    But I notice you say “even Justice Kennedy,” as if he’s some sort of guaranteed liberal vote. Given that Kennedy was a Reagan appointee, I think that reveals a bit more about you than you realize. Would you have preferred Robert Bork?

    I’m glad you recognize that the school district is moving our children around like chess pieces to promote racial integration.

    Nice try, but you’re missing the point. I don’t think there are quotas here (nor do your briefs indicate that you or your counsel understand what quotas are). The point is that your local school board will still have the power to move your kids around “like chess pieces” and treat them “like robots” whether you win the lawsuit or not. The only thing your lawsuit accomplishes is stopping racial integration. Given that you have admitted that your primary motivation for initiating this lawsuit was emotion… what emotion do you have that is offended by racial integration?

    We attended several board meetings and offered public testimony both before and after the assignments. We contacted board members repeatedly to help change policy. We also tried mediation.

    Nice try, but this is sophistry. Attending board meetings is not the same as being on the board. Contacting board members is not the same as being on the board. Trying mediation is not the same as being on the board. I don’t think you were involved in the local school board or local school board elections until after you decided to sue. You probably attended board meetings as part of a legal strategy on advice of counsel who advised you to “exhaust all the remedies”.

    The school board election next November, I plan to help vote off certain members and plan to donate $$ to people running against them. I’m even putting up yard signs. We already have two school board members who are suing the board. I’m not running for a position.

    Your participation in the local school board elections next November says nothing about your participation prior to the filing of the lawsuit. At no point — prior to filing the lawsuit — did you fund opponents of the current board members, run for office, or get on the board. And the fact that you think filing lawsuits is pro-democratic activity shows how badly you misunderstand the legacy of Ronald Reagan. And, for the record, I voted for Ronald Reagan twice.

    Like I said before, the briefs do not have EVERY detail about the case in them.

    You are assuming I have not read anything but the briefs. I do not know why. My point was that if it’s not in the record, it can’t be properly relied on by the judges. That includes your emotions that racial integration is a moral wrong.

    That was 1954 and now it’s almost 2007.

    I guess there is an expiration date on stare decisis.

    No child should be denied access to a school because of their skin color.

    No one is denied access to a school in your district because of skin color. This case is about assignments within the system, not admission to the system. Likewise, a case about your proper polling place is not a case about whether or not you have the right to vote. Your inability to make that distiction is what confirms, for me, at least, that you sued blinded by emotions and selfish motives.

    Comment by Jacques McKenzie — December 19, 2006 @ 12:15 pm

41. You mean assignment, not admittance. According to your school system, everyone has a right to admittance to a school.

    But since the Seattle schools are inherently unequal in educational benefits (a point which has been proven sufficiently throughout the course of this case), students who are not ‘assigned’ to their first-choice school are effectively not ‘admitted’. It is akin to a student who applies to two universities, and is not admitted to the more prestigious one. There must be a reason that student was not admitted; if it was race alone, as it is in this case, then it is a Equal Protection Clause violation.

    Now, as you said, every student in Seattle does not have the right to attend their first-choice school, just as every high school senior does not have the right to choose their university. But when those students are denied their choice, there must be a reason. The Equal Protection Clause mandates that race alone cannot be the reason.

    I don’t think there are quotas here (nor do your briefs indicate that you or your counsel understand what quotas are).

    This is absolutely a quota. Justice O’Connor defined a quota in this sense as “a fixed number or percentage that must be attained.” The racial tiebreaker looks to set a percentage at each of the Seattle schools.

    No one is denied access to a school in your district because of skin color. This case is about assignments within the system, not admission to the system. Likewise, a case about your proper polling place is not a case about whether or not you have the right to vote.

    As you would say. nice try. The polling places in your example are the same in terms of the benefits they offer. Seattle’s high schools are not. A student who is not assigned to their first-choice school based on race cannot access the benefits of that school because of their race. It is as if your polling place has a three-hour wait, but a neighboring one with no wait does not let you vote because you are black. That is a much more accurate description of this case.

    Comment by Christopher Battles — December 19, 2006 @ 6:53 pm

42. “Now, as you said, every student in Seattle does not have the right to attend their first-choice school, just as every high school senior does not have the right to choose their university. But when those students are denied their choice, there must be a reason. The Equal Protection Clause mandates that race alone cannot be the reason.”

    Lets be fair about the case – it was not race alone, it was race plus a desire for integrated schools. In Topeka, the children were assigned by race plus a desire for segregated schools, where the facilties were stipulated to be more-or-less equal. Brown did not speak to the mechanism of racial classification, rather it ruled on the result of it, which was the segregated schools.

    When there is a compelling government purpose that touches on race, and the legitimacy of that purpose is subjected to strict scrutiny, the government can classify people by race. Should the FDA be allowed to approve BiDil for black people only, where it is proven to dramatically effective in saving lives? Absolutely. Achieving race-conscious purposes through race-neutral means is an exercise in hand-waving.

    I do not know if the school plans are a good idea (it doesn’t seem necessary) – but they should be evaluated under strict scrutiny to determine if the Equal Protection clause has been violated, rather than dismessed out of hand. If it turned out that the Seattle plan created a renaissance of racial harmony and enabled the children of all races to strive together into a New Tommorow, I would say the plan would not violate Equal Protection the same way segregated schools do.

    Comment by Ben Kennedy — December 20, 2006 @ 5:48 pm

43. Now, as you said, every student in Seattle does not have the right to attend their first-choice school, just as every high school senior does not have the right to choose their university.

    Actually, I didn’t say this. I do not think these cases are analogous to university cases (i.e., Grutter/Gratz) insofar as “individual consideration” — e.g., looking to soft factors — is irrelevant in the K-12 context. No one is examining the resumes of kindergarteners to determine if they add intellectual and viewpoint diversity to the community the university is trying to create, because educational experts are smart enough to know kindergarteners generally don’t have resumes and they aren’t mature enough to add individualistic value. The whole point is to create an environment that fosters the development of the individuality that will be so prized when these kids apply to college. Your attempt to run the cases together is likely facetious. Your other points are as facetious and purely rhetorical.

    Comment by Jacques McKenzie — December 21, 2006 @ 10:12 am

44. The polling places in your example are the same in terms of the benefits they offer.

    No polling place is exactly the same, the racial composition of the queues at polling places reflect the homogeneity of the surround neighborhood, and wait times often do differ drastically from one polling place to another polling place. That isn’t necessarily a constitutional violation. That isn’t often a constitutional violation. In fact, even though election cases have a higher chance than other cases of review by SCOTUS, it rarely is a constitutional violation. As I actually said, your position is meritless.

    Comment by Jacques McKenzie — December 21, 2006 @ 10:20 am

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