No, but it takes us out from under the Commerce Clause jurisprudence.

My point was that this basic principle is applicable in some non-educational contexts as well. The fact that an activity is “non-commercial” does not permit its violation.

That involves a commercial aspect not present in the school context. If you prevent someone from buying a burger at any resturant, per se, because of race that might be a section 1981 action. So your analogy isn’t on point.

The fact that, by some measure, the are “roughly equal” (despite only Ballard offering the Biotechnology Academy)does not make irrelevant – or negate- the denial of equal protection involved in using his race to deny him his first choice.

Likewise,enying someone the right to eat at McDonalds because of his race is not permitted by Civil Rights Act of 1964 even if that person is allowed to dine at a “roughly equal” restaurant, Wendy’s.

Yes, but because the racial tiebreakers are only used for oversubcribed schools, the undersubscribed schools are irrelavent to the equal protection analysis. The oversubscribed schools are roughly equal to each other.

Thanks for sharing your experiences. I definitely would like to hear more teachers’ perspectives on these issues.

-Andy Grewal

Seems like Justice Breyer should have consulted with you on the realities of that school system before penning his dissent.

Seattle has unique programs but does not denominate them “magnets.” Ballard has, in additional to the Biotechnology Academy a Maritime Academy; Franklin, where I taught and which is 90% nonwhite, has the only competitive mock trial program in the district,as well as a Humanities program that began as a “magnet” in 1977 and whose purpose was to attract whites to the school; and some schools have Academies of Finance while most do not.

No fungibility of schools here in Seattle.

Justice Breyer, simply, is wrong; this denial of equal protection to Andy Meeks and his non-white peers (who could have, for example, been denied admission to Franklin on the basis of their race despite wanting to avail themselves of the opportunity to compete for a posion on Franklin’s nine-time-state-championship mock trial team. This is the “inconvenient truth” concerning Seattle’s plan that the dissenters failed to confront.

Finally, it is assumed by many that the parents bringing this lawsuit oppose integration per se. Nothing could be further from the truth. When Andy Meeks was denied admission to Ballard High School, the family moved to Mercer Island, an affluent community five minutes from Seattle. He attended a private high school and his sister was enrolled in the public schools (which are the highest-scoring in hte state). A couple dasys prior to the decision’s being handed down, I decided to phone her (she lives just a few blocks from me). She told me that one thing that really bothered her by the Seattle plan was the fact that friendships were affected by some kids in the neighborhood being rejected from the school closest to their home because of race while others were not. She said that she would not have objected to the busing of her child’s entire neighborhood for purposes of integration as was done pursuant to Seattle’s “voluntary” integration plan of 1977.

Now, of course, even the constitutionality of that plan is in doubt.

What I’m trying to ask is if the court can decide on its own (on just the filed briefs) that even though 60(b)(5) may apply, the school’s program fails the new tests and therefore the motion is denied?

But, I’m surprised to find out that the Seattle High schools varied so much in quality, given Justice Breyer’s claim that they were all “roughly equal” in quality:

“School placement has nothing to do with any student’s merits. The schools here are not magnet schools; they are roughly equivalent.”

But if 3 schools are always oversubscribed and 4 are always undersubscribed, that indicates otherwise.

The Lynn plan only affects students wishing to transfer to another school from their neighborhood school and applies uniformly to the elementary, middle and high schools.
Seattle’s plan gives distance from the chosen school greater priority at the elementary and middle school levels than for high school enrollment. Only the high school aspect of the plan was involved in the Parents Involved. The Seattle School District introduced evidence at the District Court indicating that the beneficial effects of integration are more profound the younger the child; but its plan turns this distinction upside down: its operational effect is minimal where the research shows it will do the most good, i.e. in the elementary school years.

Most importantly, he Lynn parties stipulated that, the schools are uniform, no school to which a student cannot transfer because of his race being superior to the school from which he wishes to transfer, or offering unique programs not available in his assigned school.

No such concession was made by the parties in Parents Involved in Community Schools v Seattle School District because Seattle’s plan denied students such as Andy Meeks, whose being denied the opportunity to attend the school closest to his home to participate in a unique Biotechnology Academy was singled out for attention by Chief Justice Roberts in his plurality opinion, equal educational opportunity.

That is not the case in Lynn, Massachusetts. As Judge Boudin says in his concurring opinion, “Every child can, as a matter of right, attend his or her local school. And the parties have stipulated that Lynn’s schools are educationally equal in quality; thus a child who is unable to transfer to a non-local school of choice is not relegated to an inferior education.”

A Seattle high school student, by contrast, has no right to attend his or her neighborhood high school and is relegated to an inferior education if denied his or her chosen school and forced to attend one of Seattle’s four profoundly segregated (85% or more non-white) high schools which no reasonable person could argue are educationally comparable to the three of the ten high schools most often chosen. True, as Judge Lipez says concerning the Lynn plan, “This is not to say that the denial imposes no harm at all; the transfer request itself indicates that despite the availability of a comparable education at any school in Lynn, students (or their parents) do not view the schools as fungible. But in construing the narrow-tailoring requirement that a race-conscious plan not unduly harm members of any racial group the diminished nature of any harm as significant.”

So the concession as to fungibility seems to have been a significant factor in the First Circuit’s 3-2 en banc decision in favor of the school district. The majority should have emphasized not that no racial group is unduly harmed but that no individual student, of any racial background is unduly harmed (a conclusion with which, we shall see, the two dissenters strongly disagreed).

Unlike Seattle’s, Lynn’s plan is not under-inclusive. Seattle’s plan is radically under-inclusive, as the four profoundly segregated schools are under-enrolled and never over-subscribed. Seattle’s plan only excludes students on the basis of race from over-subscribed schools and makes no effort to integrate those schools that remain racially isolated. Moreover, Lynn has not established anything approximating Seattle’s African American Academy, which the district knew or should have known, would be virtually 100% African American. That has happened, and the school has, since its founding, been one of Seattle’s academically failing schools.

The Lynn plan does not encourage the cynical manipulation of racial identity. Seattle’s does: students may change their racial/ethnic designation at any time and for any reason, and my classroom experience indicates that this is not an infrequent occurrence.

But none of these differences is likely to affect the ultimate outcome.

The Lynn plan fails to answer Court’s disapproval of racial balancing schemes, as its range of permissible racial proportions is similar to that of Seattle’s and Louisville’s without, as was the case with those two cities, providing convincing empirical support of desired educational outcomes that require a particular “mix.”

And the city employs the same crude White/Non-white dichotomy of the schemes invalidated in Parents Involved, despite Lynn being 42% White; 15% African-American; 29% Hispanic; and 14% Asian American.

Nor have all available alternatives to achieve the compelling interest been attempted (magnet schools were tried but didn’t have much effect), and transfer applicants were not subjected to Grutter-like individualized consideration. The two dissenters from in the 3-2 en banc decision write that t “Lynn can hardly be heard to complain that such a plan [involving individualized consideration of transfer requests] is unworkable. By its own admission, it already allows more than half of the students denied transfers under its race-based policy to have an exemption for non-race-related reasons…The city persists, however, in subjecting all the students who request transfers to what is in effect a two-tier process-one in which the student is evaluated solely on the basis of color, and a second in which a rejected student must convince the school that his or her color should not matter.”

The dissent goes on to praise the Lynn Plan for being well-intentioned and helping “to promote greater diversity in the public schools,” but finds that “the overriding fact is that it unnecessarily inflicts racially-based wounds on a large and diverse group of students and, consequently, fails to satisfy the narrow-tailoring requirement set out in the Supreme Court’s equal protection jurisprudence… regardless of the burden imposed by a racial preference, the simple act of granting benefits based on race will breed cross-racial tension.”

So, despite significant differences between the Lynn Plan and those rejected by the Court, it fails to meet the requirements of either the plurality or Justice Kennedy. And it is difficult to imagine a forthright consideration of race that will.