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.

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.

Roger Friedman

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).

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

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

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.

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.

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).

-Bill Thompson

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.

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

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.

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.

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