Round-Up
At FindLaw, Edward Lazarus voices his opinion on Monday’s school diversity cases here. Kenji Yoshino of Yale Law School also weighs in here at Slate.
Following up on Linda Greenhouse’s New York Times article about the “dwindling docket,” Doug Berman of Sentencing Law and Policy has his thoughts here, and Orin Kerr highlights the article here at the Volokh Conspiracy.
In today’s Wall Street Journal, Stephen Moore has an op-ed about the upcoming union fees cases here.
Finally, at Slate, Dahlia Lithwick discusses Tuesday’s debate between Justices Breyer and Scalia here.
Once again, we see the unconstitutional use of race being defended based on false factual premises.
Kenji Yoshino writes in Slate that unlike “many affirmative action plans,” the Seattle Schools do “not maintain that individuals of different racial backgrounds tend to think, feel, or act differently,” but rather “use race to convince students of its superficiality.”
Quite the contrary. The Seattle Schools use race precisely because they think that members of different races have different innate characteristics, so that failure to racially balance the schools will result in student bodies that lack certain characteristics.
The Seattle Schools have made clear their belief in race-based characteristics quite plain.
They have claimed that planning ahead (”future time orientation”), is a white characteristic that it is racist to expect minority students to exhibit, and have said that only whites can be racists.
And they have defined students as members of competing racial groups, rather than as individuals, by claiming that “individualism” is a form of “cultural racism.”
By contrast, Chief Justice John Roberts observed at the oral argument in the Seattle case that “The purpose of the Equal Protection clause is to ensure that people are treated as individuals rather than based on the color of their skin.”
Ed Lazarus at Findlaw also errs in framing the case as being about “integration.”
No court has ever found the Seattle Schools to be segregated, so there is no integration to be done here.
The fact that some schools 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 (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 in a ruling by the Supreme Court, “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 discrimination by private parties. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).
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).
Comment by Hans Bader — December 7, 2006 @ 7:03 pm