It argues that the Seattle Schools are seeking to achieve a melting pot, but Seattle school officials have publicly denigrated the very concept of a melting pot, deriding it as an outmoded concept.

Indeed, as the amicus brief of the Competitive Enterprise Institute in the Seattle case notes, the Seattle Schools’ own web site rejects the concept of a melting pot as obsolete, and emphasizes that the school district’s “intention is not . . . to continue unsuccessful concepts such as a melting pot or colorblind mentality.” (Their attack on colorblindness seems at odds with Justice Kennedy’s observation that the equal protection clause’s “central mandate is racial neutrality in government decisionmaking”).

The National School Board Associations’s brief speaks of the societal interest in preventing “de facto racially segregated schools,” but that interest is not implicated in this case.

Even without any use of race in student assignment, the Seattle schools are already quite diverse. The fact that they do not have exactly the same percentage of whites and minorities in each school does not show they are segregated in any sense.

As the Supreme Court observed in Watson v. Forth Worth Bank & Trust (1988) and Richmond v. J.A. Croson Co. (1989), it is completely unrealistic to expect racial percentages to be the same at each institution, and departures from racial proportionality do not constitute discrimination, much less segregation.

Moreover, as the Center for Individual Rights’ amicus brief notes on page 7, the Seattle schools policy actually excludes members of certain minority groups, such as Hispanics and Native Americans, from certain schools even when they are scarce because of the fact that other minority groups, such as blacks, are “overrepresented” in that school.

Thus, the challenged Seattle policy actually causes, rather than remedies, segregation.

This is because it lumps together all non-white minority groups into one undifferentiated mass, contrary to footnote 13 of the Supreme Court’s decision in Wygant v. Jackson Board of Education (1986).

Thus, if there are already a lot of blacks at a school, but no Asians, my Korean nephew could be barred from enrolling there, to limit the overall numbers of minorities, even though my nephew’s Korean-language skills and culture might add some diversity to the school.

As the amicus brief of the Asian American Legal Foundation notes, giving schools broad discretion to use race is likely to hit less politically connected minority groups, like Asians, even harded than whites. In the San Francisco public schools, it was Chinese American students who bore the brunt of the school system’s racial balancing policies, and they had to achieve an even higher score than whites or other minorities to gain admission to prestigious schools.

The NSBA brief argues that school systems should get deference as to their use of race.

But schools have historically received less deference from the federal courts than other local institutions, like prisons, in the context of other civil liberties, like free speech (free speech rights of K-12 students are broader than those of prison inmates, although narrower than those of college students, as the Competitive Enterprise Institute brief points out.

Prisons don’t get deference at all as to their use of race, as the Supreme Court recently emphasized in Johnson v. California (2005), which expressly rejected giving prison administrators deference in the race area, even though prisons enjoy wider discretion than school boards to restrict other areas of civil liberties, such as free speech, under Supreme Court decisions like Beard v. Banks (2006).

Even if school boards could seek to assert a claim to deference, there isn’t much in the record to justify giving the Seattle or Jefferson County school boards much deference.

Indeed, the Seattle schools have raised eyebrows by making peculiar claims about race that no court would ever defer to, such as claiming on their web sites that:

1. “Individualism” is a form of “cultural racism”
2. Only whites, not minorities, can be racists
3. “Having a future time orientation” (planning ahead) is acting white and is racist to advocate.

Citations and web links for the above bizarre claims by the Seattle schools can be found in pages two and three of the Competitive Enterprise Institute amicus brief in the Seattle case.

Even if deference were appealing in the abstract, do we really want to defer to a school system with this sort of attitudes, which run counter to basic civil-rights axioms?

Moreover, in cases such as the Supreme Court’s decision in Johnson, and the Federal Circuit’s decision in Rothe, the courts have stated that deference is simply incompatible with the strict scrutiny that applies to racial classifications.