Analysis: Schools’ race experiments may be doomed
If, as seems so, Justice Anthony M. Kennedy holds the decisive vote on the constitutionality of public schools’ use of race to promote integration, those experiments may well fail to pass muster in the Supreme Court. Kennedy, who three years ago had said he might accept the very limited use of race in the context of college and university admissions (although he dissented on the particular plan upheld by the Court then), on Monday emphatically resisted the notion that he should accept it in another arena — the K-12 public schools.
In order for public schools to try to reduce or eliminate “one-race” schools that largely reflect local housing patterns, they must be able to borrow from the college level the idea that the achievement of “racial diversity” in learning is constitutionally acceptable if based in part on race-based selection. That is the principle established by the Court in Grutter v. Bollinger in 2003. And, while Kennedy dissented on the particulars, he had not totally rejected the core principle. On Monday, however, he repeatedly stressed that, for him, Grutter was limited to higher education.
“That case is completely inapplicable” to the K-12 cases now before the Court, he said at one point as the Court heard the cases of Parents Involved in Community Schools v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915), involving the sometime use of race in picking which school a child may attend in a student-choice assignment plan. The Court, Kennedy, had never said that a school district that was not seeking toi end official segregation can “turn around and use an individual student’s race” in assigning that student to a school. He commented that the Court, in the Grutter decision, “went as far as it could away from” the principle that an individual’s race cannot be the determining factor in the education setting.
The outcome of the cases would depend on Kennedy if the other eight Justices were to divide evenly on the two plans. There was abundant evidence during the hearings that they would. The two newest members of the Court, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., were not as openly hostile to the plans as was Justice Antonin Scalia, but they were decidedly skeptical — especially Alito. Those three, if they voted together, would probably attract the vote of Justice Clarence Thomas, who said nothing during the two-hour argument.
Justice Stephen G. Breyer was the most fervent defender of public schools’ use of race to try to end the “racial isolation” that now is a feature of many urban school systems. But the other three Justices who, with Breyer and now retired Justice Sandray Day O’Connor, made a majority in the college decision in 2003, were also sympathetic to limited use of race this time, too. They were Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.
Kennedy has not taken the position, in the past, that race can never be used as a factor in deciding educational policy questions. To be allowed, however, he has insisted that it satisfy what he has called “rigorous judicial review, with strict scrutiny as the controlling standard.” If the Court does not closely check the use of race, he has added, then it forfeits the authority to permit race to be used even in a “modest, limited way.”
On Monday, he did not depart from that approach. He showed some sympathy for the ultimate educational objective of “reducing minority isolation” — that is, assuring that students do not attend schools dominated by their own race. At one point in an exchange with Solicitor General Paul D. Clement, Kennedy ridiculed this statement in the government’s brief: “School districts have an unquestioned interest in reducing minority isolation through race-neutral means.” He suggested that a period should have been placed after the word “isolation.”
Thus, it seemed, he was again saying he could assume a modest use of race for a valid social goal of racial understanding and harmony. But he also left no doubt that he thought the means chosen in the Seattle and Louisville school districts were problematic, at best. Kennedy told a lawyer for the Seattle school district, Michael F. Madden, that the Court had said in 2003 that “outright racial balancing” was “patently unconstitutional.” He asked: “Isn’t that what you have here?…You are choosinig each student by the color of their skin.”
During the argument on the Louisville assignment system, Kennedy seemed no more persuaded of its validity. And he made it even clearer than he was fretting about the larger implications of a ruling that would uphold either that plan or Seattle’s. While it may be that the school board in Kentucky had acted in “the utmost good faith,” Kennedy said, “the question is whether or not an insincere school board that wants to play the race card, or pursue a race-driven political advantage can make decisions based on an individual student’s race. That is what is involved here.”
Justice Stephen G. Breyer, in his sturdy defense of race as a means of assuring a racially diverse learning experience, relied on past statements in the Court’s opinions suggesting that the Constitution in seeking to make minority citizens full members of society had permitted the affirmative use of race as a means to that end. Breyer also warned Clement about the potential consequences of a ruling striking down the experiments that school districts are now making in the use of race.
“There is a terrific problem, with lots and lots of school districts becoming more and more segregated,” Breyer said. School officials, he said, are attempting to deal with that, but there is no easy way to do i. The issue, he indicated, should be left to them, not resolved in the courts.
The two newest members of the Court, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., were not as openly hostile to the plans as was Justice Samuel A. Alito, but they were decidedly skeptical — especially Alito.
This sentence makes no sense. I suspect you meant to say Scalia was hostile. But I would say that Roberts and Scalia were skeptical and Alito was hostile. Alito was the one Justice who seemed to take all of Clement’s arguments seriously.
Comment by Jacques McKenzie — December 4, 2006 @ 1:43 pm
I concur entirely with this post. Based on the arguments, and more importantly based on Kennedy’s prior opinions, a 5-4 victory for the parents is the most likely outcome.
I wouldn’t be surprised if Kennedy is assigned the opinion(s).
The idea that mere diversity based on white/nonwhite is a compelling interest is, in my view, inconsistent with both prior precedent and the proper construction of the text.
The school boards make no distinction based on ethnicities of the blacks. They just assume that all blacks are one race. But blacks have great diversity amongst themselves. From West Africans, East Africans, South Africans, Carribeans, Cubans, Haitians, mixed, etc.. . There are many diversities within the black race itself. Similar with whites. A school may have 60% white students, but they may be Irish, Italian, German, Slavic, Christian, Jew and be highly diverse.
What if the school board decided that diversity based on appearance, hair color, height, weight, athletic ability etc…? If they decided that religious diversity is important and they need more Catholics or more Muslims or more Jews? Once one accepts “diversity” as a trump card, the possibilities are endless.
Also, does anyone know if these schools accept federal funds? If so, they clearly violate Title VI of the Civil Rights Act. Perhaps the Court will decide the case on TItle VI grounds and not reach the constitutional claims.
Comment by rufus peckham — December 4, 2006 @ 1:45 pm
Addendum: What if the school borad, in the name of diversity decides that not only is racial diversity important but the level of pigmentation is important. In other words, it’s not enough to have blacks but they need blacks that have darker skin and that having lighter skinned blacks isn’t enough?
What about darker skinned white students or those of mixed backgrounds? Or a school that has white, asian and hispanic students but little balck students, or white, black and asian students but little hispanic students?
In any event, regardless of all these concerns, I expect the Court to rule 5-4 in favor of the petitioners.
These are cases where the Alito for O’Connor substitution will be seen.
Comment by rufus peckham — December 4, 2006 @ 1:50 pm
Even if Grutter v. Bollinger (2003), permitting the use of race in admissions in higher education, does apply in the K-12 context — contrary to Justice Kennedy’s suggestion — the school districts’ use of race should still be found unconstitutional, because the school districts are doing precisely what Grutter said race-conscious admissions policies could NOT do: racial balancing.
As the Supreme Court observed in Grutter v. Bollinger, 539 U.S. 306, 330 (2003), “racial balancing” is “patently unconstitutional.”
Moreover, any observer who is not willfully blind — even an observer who sympathizes with affirmative action — would have to concede that the school districts are engaged in racial balancing. Many commentators who support affirmative action have admitted as much. And many court reporters have noted that the school districts are engaged in racial balancing. See, e.g., Charles Lane, “Court to Rule on Race-Conscious Assignment of Students to Public Schools,” Washington Post, June 5, 2006, at A3 (in the Seattle and Jefferson County cases, “each [school district] seeks to maintain racial balance”); Linda Greenhouse, “Supreme Court Roundup; Court to Weigh Race As a Factor in School Rolls,” New York Times, June 6, 2006, at A1 (”One difference between the Michigan decison [Grutter v. Bollinger] and the new cases is that . . . the [Seattle and Jefferson County] school districts are trying to maintain racial balance”).
Moreover, Grutter held that race-based policies must have time limits. The Jefferson County policy has no time limit, making its position much weaker than if it were merely using race for a transition period after it became unitary.
And the Seattle Schools, while temporarily suspending their use of race after being sued, clearly want to return to race-based decisionmaking, and to do so permanently, without any time limit.
In their public statements, quoted extensively in the Competitive Enterprise Institute amicus brief, they have denigrated being “colorblind” and called the “concept” of a “melting pot” “unsuccessful,” expressing ideological hostility to the idea of non-racial government decisionmaking, even though Justice Kennedy has observed for the Court that the Equal Protection Clause’s “central mandate is racial neutrality in governmental decisionmaking.”
They are not interested in colorblind decisionmaking, ever.
They are very much averse to treating people as individuals, rather than as members of competing racial groups. Indeed, the Seattle Schools have claimed that “individualism” is a form of “cultural racism,” and have said that planning ahead (”future time orientation”) is for whites only, and that only whites can be racists. Thus, they are firmly wedded to racial stereotypes and race-based classifications.
The concept of a melting pot is a valuable one, as Judge Kozinski has observed.
And if the school system pursued it through ways (even race-conscious ways) that do not involve racial classifications or racial preferences — such as considering demographics in deciding where to site a school, so that its attendance zone would include plenty of both white students and minority students — that would just fine.
But the Seattle School District is using racial classifications, and giving racial preferences, not just keeping the goal of a melting pot in mind.
Indeed, it has rejected the very concept of a melting pot, emphasizing that the school district’s “intention is not . . . to continue unsuccessful concepts such as a melting pot.”
Moreover, in practice, the Seattle Schools’ use of race is so unthinking and rigidly mechanical that it actually aggravates racial imbalances in some schools, as the Center for Individual Rights amicus brief notes at pg. 7, and as Michael Rosman points out in his December 2 letter to the editor published in the Washington Post.
Thus, the Supreme Court should declare its use of race unconstitutional.
Comment by Hans Bader — December 4, 2006 @ 2:02 pm
Justice Scalia approached, but not sufficiently explore, one of the more outrageous aspects of Seattle’s plan: students are allowed to designate two ethnicities, change them at any time for any reason, and thus employ their race strategically to gain hte desired placement. And, judging from my 36-years teaching at Franklin high School, this is not an infrequent occurrence. Students’ racial designations are included on the computerized lists given teachers at the beginning of eacdh semester, and on virtually every one are one to three students who havfe employed their race strategically to gain admission to Franklin. This strategic advantage was often deployed by bi-racial children who identify thenselves socially as non-white, but to get a choice assignment become, mirabile dictu, white.
My complete from-the-classroom take on this case can be accessed by clicking here.
Comment by Rick Nagel — December 4, 2006 @ 2:03 pm
Perhaps I’m a bit more optimistic regarding Justice Kennedy’s disapproval of race-based decisions in education, but I feel he may provide the swing to support the Kentucky school plan.
During oral arguments, Justice Kennedy seemed very clearly against the school plans; however his interest piqued (or so it seemed when listening to the oral arguments on C-SPAN) when the Respondents noted the appeals system allowed students who could make claims that could outweight the race factor. He seemed particularly interested in the holistic approach the appeals factor noted, and the fact that the appeals system, although not noted in the record, actually helped “Josh” (the child in question) enter into the school of his choice for the first grade.
This sort of holistic appraoch in the appeals system might be what save this plan in Justice Kennedy’s eyes.
I note particular, his prediliction for this kind of holistic approach in his dissent in Grutter, where at the conclusion he states: “If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid.”
I think Kennedy may be likely to side with the Respondents than we might have originally thought.
Comment by Jeffrey Kiok — December 4, 2006 @ 2:10 pm
Well, what Kennedy said in his Grutter dissent was that the price of allowing some race-based classifications was strict scrutiny, was it not? “If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way.” So the only question in this case would seem to be, do we think that Kennedy will stick to what he said in Grutter, and if so, does this program pass strict scrutiny? I think it’s unwise to bank on consistency from Justice Kennedy (which is why petitioners should expect to be disappointed in Carhart), but going by his demeanor today, the answers appear to be, respectively, yes, and probably no.
Ultimately, I think that Kennedy will adhere to his Croson dicta (”[t]he moral imperative of racial neutrality is the driving force of the Equal Protection Clause”), and so I think – to borrow from Tom’s argot – the good guys are going to win this case, which is to say, I’d expect it to be 5-4 for the petitioners. Which is a very long way of saying that I guess Lyle was kinda’ right the other day – this case may well turn out to be Brown III, in that it may well reaffirm that “racial discrimination in public education is unconstitutional.” Brown II, 349 U.S. 294, 298 (1955).
Comment by Simon Dodd — December 4, 2006 @ 2:25 pm
If you look at how the races were depicted at the turn of the 20th century, you will see that all non-whites were drawn as “darkies”, with occasional separation into blacks, latinos (”little brown brothers”) and orientals (”yellow peril”). Perhaps we are more sophisticated today (not all blacks steal, only Nigerians; arabs and latinos are different races), but given only a picture of someone to look at, race is still the most important determinant of peoples’ perceptions of each other. Is there not a legitimate interest in breaking down this stereotyping? If children never have any experience with children of other races, how will they not engage in the same stereotyping as their parents?
Unfortunately, since Milliken v. Bradley, it has been more important that school district lines be observed than that such racism be combatted. This has made it possible for parents to preserve a highly segregated education for their children without the expense of private schools. And of course, there are areas of the country where the lack of particular minorities makes cross-racial experiences impossible. So it has fallen to the colleges to overcome the ignorance of their students about other races by consciously seeking diversity.
Justice Stevens made an interesting observation on C-SPAN two weeks ago, that nobody burns flags anymore because two Supreme Court decisions (in which he dissented) have made it entirely acceptable to do so. Perhaps nobody does race-conscious remedies anymore because they are not permitted to be efficacious. The Reaganoid approach of trivializing rights and remedies may succeed here, but it won’t be a case of “good guys” winning “Brown III”.
-Roger Friedman
Comment by r.friedman — December 4, 2006 @ 3:51 pm
“And if the school system pursued it through ways (even race-conscious ways) that do not involve racial classifications or racial preferences — such as considering demographics in deciding where to site a school, so that its attendance zone would include plenty of both white students and minority students — that would [be] just fine.”
Kennedy really seemed fond of that distinction today: race-conciousness v. racial classifications. And the Solicitor General, too, made this among its central themes. But it’s not at all clear to me how one squares this distinction with Washington v. Davis and Arlington Heights. Is it possible Kennedy will write an opinion arguing that racial classifications trigger strict scrutiny, while telling school boards that policies with a racial purpose do not? Is there a way to square this with Washington v. Davis?
Comment by Fred Smith — December 4, 2006 @ 4:00 pm
rufus,
Whether the schools accept federal funds is irrelevant. Title VI tracks the Equal Protection Clause and only prohibits the type of intentional discrimination forbidden by the Fourteenth Amendment. Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001). Thus, even if the Court were able to decide the case under Title VI, it would be tantamount to deciding the case under the Equal Protection Clause.
Adam Mueller
Comment by muelleaa — December 4, 2006 @ 5:05 pm
In response to Fed Smith’s comment: I think it goes almost without saying that Kennedy will have to separately. He could not join a Thomas opinion, or a Scalia one. It’s unclear I think, at this point, where exactly Roberts and Alito stand (assuming, safely, that they will side with petitioners), or if their opinions will be suitably subtle in their analyses to withstand Kennedy’s assertion that race can be used at all in non-remedial contexts, just narrowly tailored enough.
What I think bothered Kennedy was that his question was never suitably answered. I don’t have the transcript in front of me, but Solicitor General Clement responded, as I recall, by saying that such a situation could never happen in a practical sense. Not attempting to hide my personal opinion, I find this heartening, because it does mean that Kennedy has to square away the Government’s assertion that this hypothetical could never happen because it is impractical with the government’s prime assertion, on the other hand, that in these instant cases, race was the sole and final deciding factor. This isn’t something that can easily be done, I think.
Comment by Jeffrey Kiok — December 4, 2006 @ 5:05 pm
Justice Kennedy’s distinction between permissible race-consciousness and impermissible racial classifications is perfectly reasonable, and rooted in precedent.
And the Seattle and Jefferson County racial classifications fall on the wrong side of that distinction, since they are racial classifications that violate the Constitution.
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.
Comment by Hans Bader — December 4, 2006 @ 5:53 pm
Variously responding to the several posts, above:
Grutter has left little doubt that diversity in enrollments is a compelling interest, since it offers “substantial” educational benefits, such as promoting cross-racial understanding, tearing down racially-based stereotypes, promoting learning outcomes, improving class discourse, and preparing students to participate in a diverse workforce.
This may be more compelling in the K-12 context—for example, to prepare children to become citizens in a multi-cultural democracy. See Brown, 347 U.S. 483, 493 (1954) (“[Education] is the very foundation of good citizenship”); Plyer v. Doe, 457 U.S. 202, 221 (1982) (declaring the importance of education in “preparing students for work and citizenship”); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 472-73 (1982) (“Attending an ethnically diverse school may help prepar[e] minority children for citizenship in our pluralistic society while . . . teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage”); Comfort v. Lynn Sch. Comm., 283 F. Supp. 2d 328, 375-76 (D. Mass. 2003) (“the purpose of the public school system is as much to teach citizenship to its students as it is to teach academic subjects. Indeed, at the elementary school level, . . . teaching citizenship—the proverbial effort to ensure that students ‘work and play well with others’—is one of a school’s highest educational priorities.”).
In fact, Justice Scalia seems to speak to this in his Grutter dissent, when he remarks that learning “citizenship” and acquiring the “educational benefit[s]” of diversity are the “same lesson[s] taught to (or rather learned by, for it cannot be ‘taught’ in the usual sense) by people three feet shorter and twenty years younger than the full grown-adults at the University of Michigan Law School, in institutions . . . [that include] public-school kindergartens.” Thus, Justice Scalia seems to say that he would prefer to see diversity’s benefits inculcated during youth.
Also, keep in mind Justice O’Connor’s 25-year affirmative action-sunset provision: We’ll be that much closer to ending affirmative action by implementing such voluntary desegregation plans at the primary and secondary levels.
Moreover, a holistic, individualized consideration of applicants in assigning K-12 students is, to a large extent, irrelevant (really, now—higher-ed-styled admissions with recommendations & transcripts for kindergarteners??), since the assignment of public students is non-competitive and thereby eliminates most dangers of replacing qualification or merit-based competition with racial preference. Also, pupil assignment in K-12 public schools generally does not involve allocation of any scarce resource, which should inform the tailoring analysis: Here, every child will receive a free, public education in a district school. None has an entitlement to a particular assignment. Also see Coalition for Economic Equity v. Wilson, 122 F.3d 692, 708 n.16 (9th Cir. 1997) (“[S]chool desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and . . . to the harm of certain members of another group, and do not deprive citizens of rights.”).
In other words, these plans do not uniformly benefit any race or group of individuals to the detriment of others. There is no “undue harm.” They are also flexible, in that they include periodic reviews to determine whether racial preferences were still necessary to achieve their compelling interests.
Furthermore, the narrow focus of the school boards’ policies in addressing specific and quintessentially local educational needs is worthy of emphasis. Racial and ethnic integration as well as racial diversity are parallel compelling interests from which discrete, tangible educational benefits flow, as well as avoidance of harms.
Race-conscious school board policies should not violate the 14th Amendment if they are narrowly tailored to serve a compelling state interest. According to Grutter, the very purpose of tailoring is to better guarantee that “the means chosen fit . . . the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Grutter at 333. Here, the lower courts speak repeatedly to the districts’ efforts to attain and maintain desegregated schools and avoid the harms that would result from racial isolation that are likely to ensue if school assignments replicated segregated housing patterns.
The racial diversity rationale in the Michigan cases, applied to the K-12 context, would similarly promote racial understanding, tear down stereotypes, etc. To be sure, this is supremely important. Also, preparing children to become citizens in a diverse and pluralistic society while young and more impressionable is supremely important. The racial and ethnic integration interest, however, serves a special purpose in the K-12 context somewhat distinct from the competitive, higher-ed-Michigan cases; namely, that studies demonstrate racially integrated primary and secondary schools are correlated with better academic achievement and higher academic and career aspirations (note, for example, achievement gaps, acknowledged by the No Child Left Behind Act), promoting more equal educational opportunities, and eliminating the “two tracks” often in-place in many districts—or even within a single school, for that matter—one for poor minorities, and the other for more well-to-do majority students. This same integration interest protects against the harms that would result from racial concentration and racial isolation.
As Justice O’Connor pointed out in Grutter (at 327) “context matters,” and it is important for courts to consider “relevant differences”: Were we to ignore this command, strict scrutiny would be “fatal in fact,” despite Adarand’s intimations to the contrary. These pupil-assignment plans are narrowly tailored—“calibrated to fit the distinct issues” in their unique, local circumstances. Grutter at 334. Further, these plans do call for an individualized evaluation of race-neutral considerations—relevant in light of their K-12 public school “context”—such as space availability, sibling enrollment, geographic proximity, hardship, etc. There should be deference to districts’ determinations that other race-neutral alternatives were inadequate to realize the districts’ compelling interests; it is entirely irrelevant whether other districts’ demographic conditions are such that race-conscious measures are not needed. “Context matters.”
If the Supreme Court were to hand down a per se rule proscribing any consideration of race in pupil assignment, the Court would essentially be foreclosing an empirically established means of improving education—while disregarding the unique needs of districts across our nation—and as determined by board members who are the local and democratically elected decision-makers in public school districts, and to whom discretion to establish sound educational policy should be given.
—AVB
Comment by A.V. BRISKER — December 4, 2006 @ 10:08 pm
“Grutter has left little doubt that diversity in enrollments is a compelling interest, since it offers “substantial” educational benefits, such as promoting cross-racial understanding, tearing down racially-based stereotypes, promoting learning outcomes, improving class discourse, and preparing students to participate in a diverse workforce.
This may be more compelling in the K-12 context—for example, to prepare children to become citizens in a multi-cultural democracy.”
Can’t you see that you are exchanging one set of stereotypes for another? You are basically saying that children who do not grow up in a “diverse” environment, like those in some majority-minority districts, have a natural tendency to end up being prejudiced, stupid, and unable to even work with people of other races. The reason that some minority schools are so bad is not that there are not enough white classmates. A school in an inner city neighborhood should succeed even if all students are from local housing. Moving students around the city is a poor solution to the problem, and in fact masks some of the real issues.
That being said, I am not sure racial classification for school is necesarily unconstitutional. We already have schools for pregnant girls, as there is a practical need for this. A school for African-American boys and young men, tailored to serve their specific problems, could be beneficial – I believe some private schools have been successful with this kind of model.
Comment by Ben Kennedy — December 5, 2006 @ 8:37 am
One of the interesting aspects of these cases is the possible generational division of the justices. The older judges may have a stronger recollection of pre-Brown America and a stronger sense that Brown made the country different. Note Justice Breyer’s comment about the court using paratroopers. (Of course, one might suggest the paratroopers belonged to President Eisenhower, who chose to deploy them – unlike President Andrew Jackson.) They would see the Court as a continuing means for social engineering, whereas the younger members may have concluded the social engineering simply didn’t work since public education is still highly segregated and an abysmal failure in the inner cities.
-Bill Thompson
Comment by ashland — December 5, 2006 @ 9:24 am
I agree with A.V. Brisker that it is a worthy goal to “tear down racial stereotypes.”
But as Professor Douglas Kmiec points out in an editorial in today’s USA Today, the assigning students to schools based on their skin color only indulges racial “ugly” racial “stereotypes.”
In fact, the Seattle Schools actively promote the most invidious racial stereotypes.
They 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.
Moreover, the Seattle Schools are diverse even without using race, and no court has ever held them to be segregated.
Of course, the goal of achieving a melting pot is worthy one. Moreover, a facially neutral decision designed to promote a melting pot, like considering demographics in deciding 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.
(The First Circuit pointed that out Anderson v. Boston (1st Cir. 2004). That case quoted Washington v. Seattle School District No. 1, 458 U.S. 457, 484-85 (1982), for the proposition that while a “racial classification,” like a race-based school assignment, is subject to strict scrutiny regardless of the underlying motive for it, by contrast, 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).
Thus, striking down race-based student assignment policies would 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.
That is one more reason why the race-based student assignment policies of the Seattle and Jefferson County schools should be struck down.
They are simply unconstitutional examples of racial balancing, which Grutter v. Bollinger describes as “patently unconstitutional.” 539 U.S. 306, 330 (2003).
Comment by Hans Bader — December 5, 2006 @ 11:15 am
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.
I would reply to this, but I’m on CP time, so I might get around to it later. But only if I damn well feel like it.
Comment by Jacques McKenzie — December 5, 2006 @ 11:50 am
It seems that the issue of integrating public schools is missing the historical context of how Brown v Board of Education in 1954 came about.
At that time racism was the key factor that caused the landmark ruling.
So, I don’t think that just to have ‘balance’ of the races in the classroom is really the issue.
I don’t think it’s good to have children bussed from their neighborhoods to another district just to please those who wish to create a sense of equality.
That misses the point of having children not being able to maintain friendships within their own neighborhoods naturally.
I think it’s better to educate children about other cultures, than to try and force an artificial mix, just so it looks equal.
Comment by Richard Speel — December 5, 2006 @ 1:14 pm
Here, I offer this idea that promotes ‘diversity’ without reference to race:
http://misterthorne.org/blog_lfd/?p=185
Comments and suggestions are welcome.
_____________
Mister Thorne
11 Crestline Drive
San Francisco, CA 94131
(415) 285 5777
mister.thorne@comcast.net
http://www.misterthorne.org
Comment by LyricalReckoner — December 5, 2006 @ 3:26 pm
I think recent 9th Circuit opinion is very interesting.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/53333A1C2A376D138825723B005F9EE5/$file/0415044.pdf?openelement
Especially given John Roberts’ oral argument in Rice v. Cayetano.
http://www.oyez.org/cases/case/?case=1990-1999/1999/1999_98_818
Comment by Jacques McKenzie — December 5, 2006 @ 5:03 pm
I agree with Jacques McKenzie that the Ninth Circuit’s recent decision that a school can exclude members of all but one race (Native Hawaiians) is very interesting.
That decision, Doe v. Kamehameha Schools, was issued yesterday. It was decided by an 8-to-7 vote (all but one of the Democratic appointees were in the majority, while all the Republican appointees dissented).
John Rosenberg discusses the decision in a post called “In Paradise, Diversity Means No Whites,” at the DISCRIMINATIONS blog (www.discriminations.us).
The Ninth Circuit’s ruling illustrates the dangers of giving deference to educators on racial matters, as the Ninth Circuit did in its earlier decision upholding the Seattle School District’s use of race to promote racial balancing.
Now, the Ninth Circuit has used that same concept of deference to uphold a policy of racial segregation and exclusion.
Apparently, the defenders of using race in admissions are willing to make contradictory arguments.
When they want to admit more minority students to a predominantly white school, they argue that racial mixing enhances education for members of all races, requiring the use of race to increase minority enrollment.
But when they want to exclude whites from a predominantly minority school, they argue that racial mixing does nothing for education, and that educators’ decision to create a one-race school is entitled to deference.
(John Rosenberg’s post on the case,”In Paradise, Diversity Means No Whites,” is found at http://www.discriminations.us/2006/12/in_paradise_diversity_means_no.html).
Another reason not to give schools deference when they use race is that they may have improper motives for using race, and strict scrutiny, in contrast with deference, allows a court to smoke out such improper motives.
Although one Ninth Circuit judge accepted the argument that the Seattle Schools’ use of race was designed to create a “melting pot,” that is not their true motive, since the Seattle Schools denounce the very concept of a “melting pot” on their web site.
And the Seattle Schools have promoted invidious racial stereotypes, such as claiming that planning ahead (”future time orientation”) is a white characteristic that minorities should not be expected to exhibit, and that only whites can be racists.
And they have treated students as members of competing racial groups rather than as individuals, claiming that “individualism” is a form of “cultural racism.”
Thus, their goal doesn’t seem to be to promote integration or the concept of a melting pot.
Rather, it seems to be based on the belief that whites and minorities have permanent, innate racial differences that make racial balancing necessary to ensure that each school has a student body with roughly the same mix of characteristics.
But “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
And if their actual motive is not to promote a melting pot, but rather reflects racial stereotypes, that is another reason to find that their use of race is unconstitutional. See Shaw v. Hunt, 517 U.S. 899, 904 n.4 (1996).
Comment by Hans Bader — December 6, 2006 @ 11:29 am
For at least two weeks now, we have been reading Hans Bader’s posts about how Seattle uses white/non-white, thereby blocking oriental and latino children out of schools because there were blacks there already (or the inverse). However, that was dealt with quite adequately by the school’s counsel pointing out that Seattle’s minorities do not live in racially distinctive neighborhoods they way whites do. He said that were it a fact that such blocking were occurring, the school board would have to fashion a different policy.
Roger Friedman
Comment by r.friedman — December 6, 2006 @ 9:42 pm
Not having gone to law school, my comments will not be as versed in the cases that relate to this issue as many of the others are. However, what all of the comments in support of the plaintiffs in these two cases seem to be naive about is when it comes to the economics of the situation, which I am much more qualified to speak towards.
The thought that racial diversity could be achieved by greater consideration of where new schools are placed is fairly ignorant of the fact that school locations, as major public capital expenditures, are sticky. Once a decision is made, a school will not be shut down and relocated on the basis of a change in the district’s demographic composition.
The reason this is relevant, is because current housing patterns in this country have very much been shaped by previous policy decisions that were institutionally, if not overtly, racist and as such are a far cry from the “equal protection under the law” that we all hold dear. While schools are not free to move around as demographics shift, people are and not all public school districts are created equally. It’s the reason why I am personally glad that I went to public schools in Evanston, IL versus schools in a non-affluent neighborhood of Chicago.
If these cases are turned over on their appeal to the Supreme Court, I am certain that people will vote with their feet and to the extent that there are inequities within our public school system, it will be exacerbated by people seeking housing in the neighborhoods where the schools are known to be better than others (one only needs to consult the U.S. News and World Report’s ranking of high schools to find out which ones are clearly superior). The end result is that no matter how school boards try to “make things right” without the use of race, the end result will be that neighborhoods will become even more segregated by income (and consequently race) than they already are. And if I am not mistaken, the crux of Brown was not just that schools for whites and blacks were not equal at that time, but that also segregation, ceteris paribus, made things inherently inequitable.
As to the ethnicity issue, race is not the same concept as race is completely a social construction that under the Thomas theorem is real only because people perceive it to be. Although discrimination on the basis of ethnicity is also a part of the country’s history (new versus old immigration), it has by no means been as pervasive and detrimental to a people as discrimination on the basis of race has been and their is no other race of people that have suffer discrimination solely on the basis of skin color.
Granted that all of these comments are rooted on my personal opinion and biases, but so are all of the other comments that have interpreted the law as their own feelings justify. Although I think it is hard to argue against the economic and social reasoning behind my words. It is quite easy to be dismissive about the significance if one has never been on the receiving end of government policies that have disadvantaged you for generations. It is also important to remember that Brown, Affirmative Action, and the like were corrective actions. Of course it would be nice if those provisions were unnecessary, but the reality is that given the history of this country, there would be no incentive to change things otherwise because no one would be quick to give up the privileges they once enjoyed. Also, all of our nation’s laws, especially the Constitution, are works in progress. There have been things that were constitutional one day there were not the next.
Comment by Jason Bladen — December 7, 2006 @ 12:46 pm
I happened upon this discussion while reading news stories about race cases. While I do not have expertise in the law, as many of you obviously do, I have been watching these cases closely for personal reasons. The outcome of these school assignment cases may impact the way the Department of Education uses race in other circumstances. I am in an interracial marriage and have three school-age children. My husband and I were told at the school and county level that our children could not attend public school unless we chose only one race for our bi-racial children. If we did not choose, they would either choose for us or our children would be denied the right to attend school.
The DOE has put forth proposed race categorization guidelines that mirror the “check-all-that-apply” 2000 Census but then distills the varieties into a generic “two or more races” category when the states report data to the federal level. In Jefferson County, I guess this would make my children white, even though they are half African American.
I certainly understand the respondent’s arguements, but the limited way our institutions define people by race does not currently recognize the existence of multiracial people. If the respondents want me to buy their argument, they have offer my family a place at the table instead of leaving us out in the cold.
Comment by Dawn McKay — December 14, 2006 @ 3:32 pm