SG Briefs in K-12 Race-Conscious Admissions Cases
The Solicitor General has filed briefs on behalf of the United States as amicus curiae supporting the petitioners in both of the Equal Protection Clause cases pending before the Court. The SG argues that the Court should invalidate the race-conscious plans of both the Seattle School District No. 1 (in No. 05-908) and the Jefferson County (Kentucky) Public Schools (in No. 05-915).
On first glance, it does not appear that the SG addresses the question presented by petitioners in the Kentucky case of whether the Court should overrule Grutter. The briefs appear to presume that Grutter is the governing law, and attempt to distinguish the two pending cases from that University of Michigan decision. [Correction: Thanks to commentor Michael Yuri for pointing out that the Meredith petititioners are not actually asking the Court (not in their petition, anyway) to consider whether to overrule Grutter. Their awkwardly phrased Question Presented ("Should Grutter, Bakke and Gratz be overturned and/or misapplied by the Respondent?") led me astray. Their argument, instead, is that "the trial court" purportedly "has overturned and/or misapplied" those cases, including Grutter. At least one topside amicus brief does ask the Court to overrule Grutter, but that is not one of the questions formally presented in the petitions.]
If I have time to review the briefs more carefully in the next few days, perhaps I’ll post more on the arguments therein (and perhaps Lyle and other bloggers will, too). In the meantime, please provide any reactions in the comments section.
“it does not appear that the SG addresses the question presented by petitioners in the Kentucky case of whether the Court should overrule Grutter.”
The Kentucky cert petition doesn’t ask the court to overrule Grutter. It’s actually claiming that Grutter is effectively overruled if school boards are allowed to do what the Jefferson County Board has done.
It’s not completely clear from the bizarre way that the question presented is phrased, but it is clear from the rest of the petition.
Comment by Michael Yuri — August 23, 2006 @ 2:00 pm
First, let me say that I am not an attorney, though I taught Law and society at Franklin high School for 36 years and c oached its mock trial team.
I find it curious that neither the SG’s brief nor that of Petitioner Parents Involved in Community Schools addresses two aspects of Seattle’s current use of race to assign students, both of which are relevant to the narrowly-tailored-to-a-compelling-state-interest inhquiry, and both of which add support to arguments offered by both.
First, at both the elementary and middle school levels a neighborhood-related (proximity to school takes precedence over the Integration Positive one when a school is oversubscribed. At the high school level the Integration Positive (racial) tiebreaker takes precedence over neighborhood considerations. This despite the Ninth Circuit en banc majority’s conclusion, see slip opinion at pages 26-7, that “the public school context involves students who, because they are younger and more impressionable, are more amenable to the benefits of diversity,” and its citation of Comfort v Lynn School District for the proposition that “in fact, there is significant evidence in the record that the benefits of a racially diverse school are more compelling at younger ages.” It cites with approval the expert testimony in Comfort that the time to teach racial tolerance and break the “habit of mind” of racial stereotyping is “when the students are still young, before they get locked into racialized thinking.”
A reasonable person, looking at the Assignment Plan as a whole, might conclude that 1) the compelling interests it cites are really not all that compelling as far as the District is concerned); and/or 2) that the means of their effectuation are ill-matched to the furtherance of those interests.
Second, the broad, unchallengeable discretion given families to strategically deploy their student’s race/ethnicity to garner a desired placement was not brought to the attention of the courts below.
At initial enrollment the District asks that families designate two ethnicities for their students, the first of which “will be used for Federal, State, and District requirements.” (See Seattle Public Schools 2005-06 Registration Form”) We are never told what the second one may be used for. Moreover, those who refuse to make a designation have one made for them (though we are not told how or by whom this is accomplished). Id. Then, the District endorses a protean concept of race and ethnicity: “Ethnic designations may be changed at any time.” (Seattle Public Schools 2005-06 Student Assignment Plan and Procedures High School [Grades 9-12) page 3, Ethnicity). Identical provision is made for change of ethnic/racial identification for elementary and middle school students. The sensitive nature of this issue apparently precludes even a minimal effort to control this discretion: there is no mention of an ethical obligation to identify oneself as one does in other contexts, and no explanation is given for allowing a change in ethnic identification “at any time,” and for any reason.
And students do take advantage of this unchecked discretion: When I was teaching, one of a pair of twins was designated as African American and the other as white; it was not uncommon for me to ask an African American student why s/he was listed on the class record as White. I was invariably given the same answer: “to get into Franklin.” I assume that more than a few Whites were doing the same at Ballard and Roosevelt. One student, a young woman whose mother was White and father Black, told me that her father was so opposed to the request that he classify her racially that he decided to protest by designating her as a Gypsy. Not believing her, I checked the school records: surely enough, he had.
Judge Fisher, who wrote the Ninth Circuit opinion at issue, says at page 11 of the slip opinion, that “for the purposes of the race-based tiebreaker, a student is deemed to be of the race specified in his or her registration materials.” The Ninth Circuit majority did not pursue the matter further, nor did those in dissent.
Comment by Rick — August 23, 2006 @ 2:28 pm
The Competitive Enterprise Institute also filed an amicus brief in support of the petitioner in the Seattle case, urging the court to strike down the race-based student assignment plan.
See http://www.cei.org/pdf/5482.pdf.
CEI’s amicus brief notes that the Seattle schools have made some pretty bizarre statements about race, such as claiming that individualism is a form of racism, that planning ahead is a stereotypically white characteristic that minorities should not be expected to exhibit, and that only whites can be racists.
The Seattle schools’ web site denigrates the concept of a “melting pot,” even though one of the Ninth Circuit judges who voted to uphold the schools’ use of race did so because he was under the misimpression that the schools were seeking to thereby achieve a “melting pot.”
The school district’s strange statements about racial and educational matters call into question whether it should, as the Ninth Circuit, receive special deference as to its decision to use race in student assignments.
The school board in the 1986 Wygant case got no deference from the Supreme Court as to its use of race, which the Supreme Court struck down, despite the school district’s arguments that its use of race was valid to promote “diversity” and provide minority “role models.”
It’s not clear why the Seattle school district should get any more deference, given that its arguments are far weaker.
In fact, given its bizarre public statements, it should get a lot less deference.
Prisons have broader deference to restrict the conduct of prisoners than schools do the conduct of their students and faculty, as the Supreme Court’s 2005 Beard v. Banks decision illustrates.
Yet the Supreme Court refused to give prisons any deference as to their use of race in the Johnson v. California decision.
It should similarly give K-12 schools no deference when they use race.
For some of the Seattle schools’ bizarre racial statements, see the web page at
http://www.fourmilab.ch/fourmilog/archives/seattle_schools_racism_2006-05-29/searace.htm .
For their current attack on the concept of a melting pot, see the web page at
http://www.seattleschools.org/area/equityandrace/definitionofrace.xml .
Comment by Hans Bader — August 23, 2006 @ 2:28 pm
The SG did not need to reach the issue of overruling Grutter. The “compelling interest” adopted in Meredith and PICS is one of racial balancing (a.k.a. racial diversity). Since the Grutter Court specifically disavowed diversity measured by race alone as an interest it was accepting in that case, the Court will not have to revisit Grutter during its compelling interest analysis. It can limit its analysis to racial balancing, rather than viewpoint diversity in which race is one element.
The Court will have to address Grutter during its narrow tailoring analysis. The Ninth Circuit held that the individualize consideration test for narrow tailoring was not applicable to racial diversity plans. The Sixth Circuit held that the individualized consideration requirement is applicable, but then applied the test in a way that does not follow Grutter. Even within the context of narrow tailoring, the question the Court will need to address is whether the narrow tailoring requirements articulated in Grutter are applicable in the context of a racial diversity plan, rather than potentially overturning Grutter on that point.
So given the interest at issue in the two cases, it is not surprising that the SG and the couple of other amicus briefs I’m familiar with at this point (including the one I filed) do not directly attack Grutter. Having said that, the current Court is of course free to use these cases as an opportunity to re-examine Grutter in light of the broad endorsement of race-based policies Grutter is being used to justify; and I am glad that amicus brief from The Project on Fair Representation, et al. direct asks the Court to do so.
Comment by MWilliams — August 23, 2006 @ 4:23 pm
The Seattle School District has made some odd, inflammatory claims about race, as I noted above. One of those claims was that individualism is a form of cultural racism.
For example, below is the text from one of the Seattle School District’s web pages:
“Definitions of Racism
Racism:
The systematic subordination of members of targeted racial groups who have relatively little social power in the United States (Blacks, Latino/as, Native Americans, and Asians), by the members of the agent racial group who have relatively more social power (Whites). The subordination is supported by the actions of individuals, cultural norms and values, and the institutional structures and practices of society.
Individual Racism:
The beliefs, attitudes, and actions of individuals that support or perpetuate racism. Individual racism can occur at both an unconscious and conscious level, and can be both active and passive. Examples include telling a racist joke, using a racial epithet, or believing in the inherent superiority of whites.
Active Racism:
Actions which have as their stated or explicit goal the maintenance of the system of racism and the oppression of those in the targeted racial groups. People who participate in active racism advocate the continued subjugation of members of the targeted groups and protection of “the rights” of members of the agent group. These goals are often supported by a belief in the inferiority of people of color and the superiority of white people, culture, and values.
Passive Racism:
Beliefs, attitudes, and actions that contribute to the maintenance of racism, without openly advocating violence or oppression. The conscious or unconscious maintenance of attitudes, beliefs, and behaviors that support the system of racism, racial prejudice and racial dominance.
Cultural Racism:
Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as “other”, different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.
Institutional Racism:
The network of institutional structures, policies, and practices that create advantages and benefits for Whites, and discrimination, oppression, and disadvantages for people from targeted racial groups. The advantages created for Whites are often invisible to them, or are considered “rights” available to everyone as opposed to “privileges” awarded to only some individuals and groups.
Source: Teaching for Diversity and Social Justice, 1197 eds. Adams, Bell & Griffin
Race
A pseudobiological category that distinguishes people based on physical characteristics (e.g., skin color, body shape/size, facial features, hair texture). People of one race can vary in terms of ethnicity and culture.
Ethnicity
A group whose members share a common history and origin, as well as commonalities in terms of factors such as nationality, religion, and cultural activities.
Culture
The way of life of a group of people including the shared values, beliefs, behaviors, family roles, social relationships, verbal and nonverbal communication styles, orientation to authority, as well as preferences and expressions (art, music, food). “What everybody knows that everybody else knows.”
Acculturation
A dynamic process that occurs when members of one culture (culture of origin) come into contact with another culture (host/dominant culture) over a long period of time. The process involves exposure to, reaction to, and possible adoptions of aspects of the other groups culture. Adapting to the characteristics of the larger or dominant culture, while retaining some of one’s unique cultural traits.
Assimilation
The process of giving up connections to and aspects of one’s culture of origin and blending in with the host/dominant culture. Also, the wholesale adoption of the dominant culture at the expense of the original culture.
Prejudice
An attitude or opinion that is held in the absence of (or despite) full information. Typically it is negative in nature and based on faulty, distorted or unsubstantiated information that is over generalized and relatively in-flexible. Prejudices can be conscious or relatively unconscious.
Oppression
Treatment of a group of people within a society that results in the systematic denial of equal access to civil rights, freedoms, and power within that society. It involves a devaluing and non-acceptance of the target group and can be manifested economically, politically, socially, and/or psychologically. Individuals, through their values and behavior, can collude with a system of oppression which contributes to its maintenance in a society.
Equality
“In any given circumstances, people who are the same in those respects relevant to how they are treated in those circumstances should receive the same treatment” (p. 45). Equality defined in this way, looks at the individual and the circumstances surrounding him or her. It does not focus on group differences based on categories such as race, sex, social class, and ethnicity. This view is one of assimilation because it assumes that individuals, once socialized into society, have the right “to do anything they want, to choose their own lives and not be hampered by traditional expectations and stereotypes” (Young, 1990, p. 157).
Equity
“…. deals with difference and takes into consideration the fact that this society has many groups in it who have not always been given equal treatment and/or have not had a level field on which to play. These groups have been frequently made to feel inferior to those in the mainstream and some have been oppressed. To achieve equity, according to Young (1990), “Social policy should sometimes accord special treatment to groups” (p. 158). Thus, the concept of equity provides a case for unequal treatment for those who have been disadvantaged over time. It can provide compensatory kinds of treatment, offering it in the form of special programs and benefits for those who have been discriminated against and are in need of opportunity.”
Equitable Access
Equitable access provides groups of people access to resources, services and programs that would not otherwise be available to them due to disadvantages created over time resulting from many factors including marginalization, racism, discrimination, and oppression. In essence, equitable access attempts to create a level playing field between the have and have nots.
Equity and Equality Definitions came from Krause, J. K, Traini, D. J., & Mickey, B. H. (2001). Equality versus equity. In J. P. Shapiro & J. A. Stefkovick (Eds), Ethical leadership and decision making in education (76-90). Mahwah, NJ: Lawrence Erlbaum.”
In case the above web page disappears, it should be noted that its text has also been reprinted at other web sites. See, e.g., Volokh Conspiracy comment, June 3, 2006, at 10:35 a.m. (http://volokh.com/posts/1149182682.shtml #99930) (setting forth the entire content of the above Seattle School District web page defining racism); Seattle’s Racist Public Schools: Responses, Blog Jones, June 9, 2006, 1:05 p.m. (www.blogjones.com/WordPress/2006/06/03/seattles-racist-public-schools/#comment-13674) (commentator who viewed the Seattle school district’s web site notes that “a commenter at the Volokh Conspiracy has posted the full text of the webpage in the comment thread” at the preceding link).
Comment by Hans Bader — August 23, 2006 @ 5:52 pm
Half of the “Should Grutter, Bakke and Gratz be overturned and/or misapplied?”, question is easy on the face of it.
Perhaps they should or should not be overturned, but they most definitely should not be misapplied.
No red blooded American jurist would favor misapplying Grutter, misapplying Bakke, or misapplying Gratz. That’s crazy talk.
Comment by ohwilleke — August 23, 2006 @ 6:11 pm
For those without easy access to the petition in Meredith, here is the question presented, as taken from Howard Bashman’s How Appealing blog:
Should Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of Universitv of California v. Bakke, 438 U.S. 268 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003) be overturned and/or misapplied by the Respondent, the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (nontraditional) schools in the Jefferson County Public Schools?
As Bashman notes, the question is poorly phrased.
Comment by Ken Jost — August 23, 2006 @ 8:37 pm
From the Solicitor General’s brief: “In Brown v. Board of Education, 347 U.S. 483 (1954)(Brown I), the Court held that intentionally classifying students on the
basis of race violates the Equal Protection Clause.”
Did the Court actually hold that mere classification of students on the basis of race violated the Equal Protection Clause? Does mere classification = invidious discrimination? It might be necessary for segregation, but it is sufficient? I think this is an overstatement or a reinterpretation of the Court’s holding in Brown v. Board of Education. Though it comes directly from the Solicitor General’s brief, it certainly contradicts the viewpoint of prior Solicitors General, e.g., Thurgood Marshall.
For that reason, I do not think that the question presented is poorly drafted. I think it reflects what the petitioners want: an individual right not to be classified on the basis of race.
Which is both a departure from precedent and controversial: it would seem the government couldn’t keep any statistics to track discrimination of each citizen had a 14th Amendment veto on merely being classified — it would also render taking the Census unconstitutional! It is not clear that even Justice Harlan would agree with such a conception of a “color-blind Constitution”.
Comment by Commentator — August 24, 2006 @ 4:14 pm
From Article I, Section 2: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.”
Is the argument really that no racial classification of individuals can be taken into account in taking the census? That is quite odd for an originalist to square with Article I, section 2, because individual Indians (those not a part of Tribes) have to be accounted for. Is the Solicitor General’s office arguing that Article I, section 2 was implictly abrogated by the Fourteenth Amendment? If so, does that mean individuals can sue state governments helping out the federal government to classify individuals by race under the 11th Amendment and sue the federal government for intruding into state policy-making under the Tenth Amendment? I really think the Solicitor General’s position is troublesome.
Comment by Commentator — August 24, 2006 @ 4:41 pm
I would also note that the Solicitor General’s briefs fail to mention that their interpretation of Brown is a rehash of the argument that won with regard to the 15th Amendment in Rice v. Cayetano, but it unclear that such an argument applies with force outside of the context of Hawaii, to the 14th Amendment outside of the context of voting, and it also ignores that John Roberts argued the opposing (losing) argument — so this is a standard liberal/conservative split.
Comment by Commentator — August 24, 2006 @ 4:46 pm
NOT a standard liberal/conservative split, rather.
Comment by Commentator — August 24, 2006 @ 4:46 pm
I would also note that topside amicus brief from The Project on Fair Representation, et al., linked to above, raises Article 1, Section 2 on page 6 of its brief.
Comment by Commentator — August 24, 2006 @ 5:09 pm
After fully reading the Fair Project’s amicus brief, I must note it is widely off-the-mark. It too commits the fallacy of equivocating between mere use of racial classifications in the course of government policy-making, e.g., collecting statistics, and depriving someone of a civil right because of a racial distinction codified into law, e.g., Jim Crow laws. Furthermore, the purpose of these programs is to promote racial integration, not to balance its school’s racial populations. Racial integration demolishes stereotypes and enhances each and every student’s receptivity to a broader range of facts, ideas, and perspectives. It enlarges their moral imagination and, despite Hans Bader’s post, promotes individualistic self-determination. The school district is not interested in pursuing numerical goals for the sake of numerical goals; it is interested in guaranteeing sufficient racial integration to provide the educational benefits that such a social environment confers upon each student during his formative years — i.e., the admissions aren’t based on the viewpoint diversity of the students when they apply because the point of the K-12 admissions policy is to destroy the groupthink that results from racial isolation in segregated neighborhoods and create a different kind of viewpoint diversity amongst the student body than that exists prior to admission. In other words, the program isn’t trying to reinforce “white-thinking” and “black-thinking” — the purpose of the program is to demolish both so that the compelling interest of genuine diversity can be substituted in its place. The only question at issue in this lawsuit is whether the program is tailored narrowly enough to survive strict scrutiny — which is nothing more than another way of counting to five. The Fair Project amicus brief is cynically shilling for votes.
Comment by Commentator — August 25, 2006 @ 4:55 am
I completely agree with Commentator’s thoughtful and articulate statement of the compelling interest school districts have in racially and ehtnically integrated schools. In the Seattle case, however, the narrow tailoring requirement is simply not met for the following reasons:
1. The District’s race conscious admission policy for its high schools is both overinclusive and underinclusive: overinclusive because it applies to schools where the compelling interests articulated by Commentator are already being achieved, and underinclusive because the two most racially segregated schools in the District are not affected because so few students wish to attend them that the Integration Tiebreaker is not utilized.
2.The District presented social science evidence that it is at the elementary school level that its compelling interests will be most readily achieved, yet there (and at the middle school level)neighborhood of residence has priority over the putative compelling interest in integration. This is the reverse of the case at the high school level and, perhaps, explains why no litigation has commenced concerning any but the high school aspects of the student assignment plan.
3.Students are allowed to change their racial/ethnic identification at any time and, thus, are able to deploy their racial/ethnic identification strategically (or dishonestly). As a teacher for 36 years at Franklin High School (a school given attention in all the briefs because it is one of the five in which the Integration Tiebreaker is most frequently used) I can assure you that this happens frequently (see my earlier post).
4. Finally, the District makes no effort to provide for genuine diversity in a District with an extraordinary number of ethnic groups, instead utilizing the binary classification of White/Non-White. As Petitioner’s brief points out, this accomplishes no more than “pigmentation diversity.”
Comment by Rick Nagel — August 25, 2006 @ 10:38 am
Commentator suggests that using race, such as mandating numerical goals and racial balancing to create ethnically mixed student bodies, is somehow necessary for learning.
That is at odds with the fact that schools in the upper midwest and upper New England, whose student bodies are almost entirely one race (white), have much better educational achievement results (especially in math) than schools in areas like the south that have ethnically-mixed populations of white and black students).
Moreover, the claim that racial tinkering promotes educational achievement is at odds with the amicus brief of educational researchers David Armor, et al., filed in the Seattle and Jefferson County cases pending before the Supreme Court, which found no need to use race to improve educational achievement.
More importantly, there was an actual study of whether racially-balanced student bodies provide any educational benefit in the Seattle schools, whose race-based student assignment policy is now before the Supreme Court.
That study found no benefit, according to the Seattle psychologist hired by the school board to conduct the study, James Sewell Moore, as he explained in the June 6, 2006 Seattle Post-Intelligencer web blog.
Moore apparently did the only official study (1965-68) of the effects of racial balancing on academic achievement, a study commissioned by the school district yet apparently ignored ever since.
He found that achievement did not improve, and the city did not get more integrated as a result, in part because the race-based school assignments promoted white flight.
Moore noted that many black parents objected to the busing just as white parents did.
Moore says that retiring school officials admitted to him that the schools’ use of race was a failure, validating his original research and report.
Studies like Moore’s suggest that racial balancing and numerical goals may not only be unconstitutional, based on past Supreme Court decisions, but also bad educational policy.
Moreover, by encouraging middle-class parents (predominantly white) unhappy about such social engineering to flee the system, such racial tinkering may produce a student body that is less racially and economically “balanced” than the student body that would have existed under a race-neutral student assignment process.
Comment by Hans Bader — August 25, 2006 @ 10:50 am
Hans Bader: Commentator suggests that using race, such as mandating numerical goals and racial balancing to create ethnically mixed student bodies, is somehow necessary for learning.
I absolutely did not “suggest” that. And by the foregoing sentence, I am certainly suggesting that you are a liar.
Comment by Commentator — August 28, 2006 @ 2:25 pm
Rick Nagel,
Those are interesting points, and I think this will indeed come down to the specific facts of the case. But I also think that which facts are relevant depends on the nature of the individual right being asserted by the petitioners. If the right being asserted is merely the right not to be classified by race, then the fact that there is a compelling interest that can be narrowly tailored (e.g., at the elementary and middle school level) would seem to put the issue to rest — the issue can’t be, as the amici assert, the abstract use of racial classifications, but their particular use as a tiebreaker in the high school programs. The question, then, is what “civil right” is the tiebreaker attached to? And because the record below is devoid of any evidence of burdens other than admittance to the school of one’s choice, I’m not really sure how more narrowly tailored the program would need to be or what the narrow tailoring would consist of — either the program can use racial classifications or it can’t: but that issue is answered at the compelling interest stage, because the nature of the right asserted is abstract.
You somewhat address this issue with your points that (1)”the progam is overinclusive because it applies to schools where the compelling interests articulated by Commentator are already being achieved, and underinclusive because the two most racially segregated schools in the District are not affected because so few students wish to attend them that the Integration Tiebreaker is not utilized” and
(2)”the District makes no effort to provide for genuine diversity in a District with an extraordinary number of ethnic groups, instead utilizing the binary classification of White/Non-White.”
As to (1), overinclusivity or underinclusivity would seem not to affect the narrowness of the tailoring, because if there is no oversubscription, the tiebreaker isn’t used — i.e., the tiebreaker exists to deal with allocating seats at the high-demand schools; of course it wouldn’t be employed for low-demand schools; the fact you are pointing to only proves that the program has been tailored with some degree of narrowness. Whether that degree of narrowness is sufficient is the question. But you can’t beg the question!
As to (2), the white/non-white classifications reflect the socioeconomic reality — i.e., it may actually reflect the dynamics at play. More affluent students, i.e., white kids, can opt out of the public school system if it is not to their liking, as many do. This system, it seems, was designed to counteract “white flight”. The reason each non-majority group is not considered separately is that the system is tailored with some degree of narrowness to keep affluent whites in the public school system, i.e., the program is not concerned with pigment, it is concerned with class (and the educated and involved parents that correlate to affluent kids). That is proof of some degree of narrowness to the tailoring, not proof of its breadth. Whether is it sufficiently narrow is the question to be decided, but to say that the program lacks any narrow tailoring at all and to mischaracterize the narrowness of the program’s tailoring only proves my point that this a fact intensive question that cannot be absolved by abstract appeals to “racial balancing” and “numerical quotas,” or weepy stories about children being bused across town, none of which is present in the factual record of this case.
Comment by Commentator — August 28, 2006 @ 2:46 pm
The white vs. non-white dichotomy employed by the Seattle school district, which lumps together all non-whites, is inappropriate, and fatally-flawed, under decisions such as Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), which reject lumping together different non-white ethnic groups for purposes of racial classifications. See also L. Ferriozzo Concrete Co. v. Casino Reinvestment Dev. Auth., 776 A.2d 254, 262 (N.J. App. 2001) (invalidating a race-conscious program solely because it lumped together all non-whites); Builders Association v. Cook County, 256 F.3d 642, 646 (9th Cir. 2001).
Underinclusiveness does affect (and fatally undermine) narrow tailoring under cases such as Church of the Lukumi Babalu Aye v. Hialeah (1993) and R.A.V. v. St. Paul, as the amicus briefs of the Center for Individual Rights, et al., explain in the Seattle case. Under Lukumi, underinclusiveness defeats both the claim that the use of race serves a compelling interest and the argument that any such use of race is narrowly-tailored.
I am glad that Commentator now rejects the suggestion that using race, such as mandating numerical goals to create racially balanced student bodies, is somehow necessary for learning. Indeed, it is not necessary.
If using race isn’t necessary, I cannot imagine why it would be constitutional under the Supreme Court’s strict scrutiny jurisprudence, under which race can only be used when it is necessary to achieve a compelling state interest. See Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)(race can only be used to promote compelling state interest, and only if race-neutral means cannot accomplish the same goal); Croson, supra (Kennedy, J., concurring) (race can only be used as a last resort); accord Engineering Contractors v. Metro. Dade County, 122 F.3d 895 (11th Cir. 1997) (under Supreme Court precedent, race can only be used as a “last resort,” and only when it is necessary to achieve a compelling government interest).
I had understood Commentator to make just that argument when he wrote that the school district was “pursuing numerical goals” in hopes of “guaranteeing sufficient racial integration to provide the educational benefits such a social environment confers upon each student,” an environment that Commentator wrote “demolishes stereotypes and enhances each and every student’s receptivity to a broader range of facts, ideas, and perspectives” and “promotes individualistic self-determination.”
Commentator’s belief that such race-conscious policies promote individualism and receptivity to opposing perspectives is not supported by the example of the Seattle School District, which practices such race-conscious policies.
The Seattle schools attack “individualism” by expressly definining it as a form of “cultural racism.” See, e.g., http://www.fourmilab.ch/fourmilog/archives/seattle_schools_racism_2006-05-29/searace.htm
They also attack a wide array of contemporary American perspectives as being racist, demonstrating a deep intolerance for viewpoint diversity that seems at odds with the Commentator’s argument that schools should encourage students “receptivity” to a broad range of perspectives.
Although Commentator speaks of the importance of demolishing stereotypes, the Seattle School District clings rigidly to stereotypes.
The Seattle School District ridicules the very concept of a “melting pot” and being “colorblind.” See, e.g., http://www.seattleschools.org/area/equityandrace/definitionofrace.xml
In a particularly extreme example of stereotyping, the Seattle schools claim that “future time orientation” — planning ahead — is a stereotypically white characteristic that minorities should not be expected to exhibit. See http://www.fourmilab.ch/fourmilog/archives/seattle_schools_racism_2006-05-29/searace.htm.
That is a classic example of the soft bigotry of low expectations.
Although Commentator speaks of the need to promote receptivity to a broad range of ideas or perspectives, Commentator does not show much receptivity himself when he intemperately and erroneously derides me (from behind the cloak of anonymity) as a “liar” for my previous post.
Comment by Hans Bader — August 28, 2006 @ 4:52 pm
Dear Hans,
Case citations notwithstanding, you are still lying. You micharacterize my position as this: “I had understood Commentator to make just that argument when he wrote that the school district was ‘pursuing numerical goals‘…” What I wrote was: “The school district is not interested in pursuing numerical goals…”
Hans Bader: “Although Commentator speaks of the importance of demolishing stereotypes, the Seattle School District clings rigidly to stereotypes.”
The website you cite to notwithstanding, the actual factual record of this case shows that the local school board is interested is demolishing racial stereotypes that result from the racial isolation of the city’s housing patterns. The Ninth Circuit majority opinion goes to great lengths to demonstrate that the use of race is in fact a last resort and the only effective means to combat the problem it seeks to solve. So all of your citations support the Ninth Circuit’s majority opinion: See Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)(race can only be used to promote compelling state interest, and only if race-neutral means cannot accomplish the same goal); Croson, supra (Kennedy, J., concurring) (race can only be used as a last resort); accord Engineering Contractors v. Metro. Dade County, 122 F.3d 895 (11th Cir. 1997) (under Supreme Court precedent, race can only be used as a “last resort,” and only when it is necessary to achieve a compelling government interest).
One final point. I think any reasonable person wonkish and smart enough to peruse this site knows that you don’t care that “all the non-whites” have been lumped together. What th local school board is trying to do is prevent future children from ending up like you. It’s called education — and it eradicates ignorance.
Comment by Commentator — August 28, 2006 @ 11:15 pm
Commentator,
The “Seattle Plan” is predicated on an assumption with which I fully concur: exposing students to others of different racial and ethnic backgrounds is a compelling interest. However, the means of achieving that interest must be narrowly tailored to achieve that ultimate purpose. You misapprehend this when you say that “of course it [the tiebreaker] wouldn’t be employed for low-demand schools.” If the goal is to achieve a racially/ethnically integrated environment in each school in the district, that goal would be paramount whether the school was over or undersubscribed. To achieve such integration only in oversubscribed schools while allowing those undersubscribed, which are already suffering from competitive disadvantages of various sorts, to become more segregated hardly qualifies as a compelling state interest. Cleveland, Sealth and Rainier Beach high schools, already segregated and suffering from reputations as academically inferior, are not touched by the Seattle School District’s putative “compelling interest.”
Meanwhile, the tiebreaker applies to Ballard, Nathan Hale and Roosevelt, schools that are already so racially/ethnically integrated that they would be the envy of school districts who cannot even dream of such integration due to their dearth of whites.
This incoherence is relevant to both the compelling interest and narrow tailoring inquiries, as the means utilized to achieve the alleged compelling interest are so poorly tailored to that end as to render questionable whether the district really sees it as compelling at all!
When one considers that residence is the primary criterion for assigning students at both the elementary and middle schools, the conclusion is clear (to me, at least): the district wants the best of both worlds, to minimize white flight while not surrendering its dedication to the notion that “race matters.” It does this by creating, in effect, neighborhood schools for the elementary and middle school years and establishing a so-called Integration Tiebreaker for high school students that operates solely in oversubscribed schools and effects perhaps 10% of high school students (who, as will become clear, have the option of choosing and altering their racial/ethnic identification at will).
Establishing its racial bona fides i.e. displaying its allegiance to the importance of race, is of great importance to the Seattle School District (as is breathtakingly clear to those who have read the material from the district’s web site cited by Hans Bader), but it has learned that when it gets carried away, it precipitates “white flight” (which, as of late, has metamorphosed into a middle class flight that is quite racially/ethnically diverse in its composition).
The District has learned that when a truly race-neutral assignment plan is in effect, such as the cross-town busing plan in effect from 1978 to 1988 or so, that paired schools from predominantly white and predominantly non-white neighborhoods, with students from both neighborhoods in grades 1-3 (regardless of race), for example, attending one school, and all students in grades 4-6 (again, regardless of race) the other. This would require each student to endure the burden of the cross-town bus ride for three of the six years.
White flight defeated the intended effect of this race-neutral assignment plan. It was not, in fact, the district’s first race-neutral effort to integrate its schools: a magnet program instituted in 1977, and which involved significant expenditures, failed to have an integrative effect. The District moved to the mandatory plan described above so quickly (in 1978) because a lawsuit was threatened. It is only a legal fiction that Seattle’s racial imbalances were not due the de jure segregative acts of the District, and it did not want this exposed in court with the resulting monitoring by a federal judge that would likely have followed.
Perhaps this history is why similar race-neutral means of assigning students were not attempted again. Still, the District has no satisfactory explanation for its failure to consider a lottery or free/reduced price lunch status as tiebreakers.
Finally, the District apparently failed to take heed of the Court’s rationale for subjecting racial classifications to strict scrutiny: “Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.” City of Richmond v J.A. Croson Co., 488 U.S. 493 (1989) (plurality opinion).
Concededly, “stigmatic harm,” is not implicated here, but “the politics of racial hostility” is, a hostility that certainly can be the consequence of cynicism concerning this nation’s dedication to the proposition that “our constitution is colorblind.” Imagine the reaction of students to the provision allowing for the strategic deployment of one’s race/ethnicity (students may change their racial/ethnic classification at any time, and there is no restriction on the reason(s)for doing so).
Such cynicism and hostility are the natural consequences of students coming to the conclusion that racial considerations will forever be a factor in deciding their fates, and that their racial identity is “timeless in its ability to affect [their] future[s]?” Wygant v Jackson Board of Education at 476 U.S.276 (1986); accord Croson, 488 U.S. at 497-98.
Comment by Rick Nagel — August 29, 2006 @ 1:32 am
Commentator misstates the holding of the Ninth Circuit in the Seattle case, the history of Seattle’s student assignment plan, and what he himself expressly said in his prior post.
The Seattle School District did NOT use race as a last resort, as precedent requires, nor did the Ninth Circuit so hold. The Ninth Circuit rejected the very idea that race could only be used after exhausting race-neutral alternatives. See Parents Involved in Community Schools v. Seattle School District No. 1, 426 F.3d 1162, 1190 (9th Cir. 1995)).
The School District showed little interest in exploring race-neutral, or less race-conscious, plans that were presented to it. See Parents Involved, 426 F.3d at 1188-90.
Indeed, as Judge O’Scannlain earlier observed in the panel opinion, and as Judge Carlos Bea observed in dissent to the en banc decision, the District did not seriously consider alternatives presented to it like the Urban League’s plan. Indeed, as those judges pointed out, one school board member was so hell-bent on using race that he admitted that he refused to even read a less race-based alternative student assignment plan simply because he would “rather play with my bass lunker fishing game” instead. See Parents Involved, 426 F.3d at 1215-16.
Completely ignoring alternatives to using race in order to play a “bass lunker fishing game” is not, as Commentator would argue, using race as a last resort.
The District showed little interest in race-neutral alternatives, such as the above-mentioned student assignment plan. It did not ask its demographer to conduct any analysis as to the effect or workability of the plan, and one District board member admitted that the District “didn’t deal with” the plan [ER 514]; another board member stated the District didn’t consider the plan [ER 643].
Commentator also selectively quotes from his own prior post to claim that he never supported the use of numerical goals and that I lied in saying he did.
He now says he wrote that “The school district is NOT interested in pursuing numerical goals…”
(Never mind that that is precisely what the school district’s plan does, setting racial numerical goals for school enrollment).
That is only part of what he wrote. Here’s what he in fact wrote:
“The school district is not interested in pursuing numerical goals FOR THE SAKE OF NUMERICAL GOALS; it is interested in guaranteeing sufficient racial integration to provide the educational benefits that such a social environment confers upon each student during his formative years.” (emphasis added)
In other words, the school district IS interested in pursuing numerical goals, just not solely “for the sake of numerical goals.” It pursues numerical goals in order to achieve certain benefits that it (and commentator) believes flow from the social environment produced by achieving such numerical goals, not just because of an abstract desire to achieve certain numbers for their own sake.
(The same could have been said of the racial quota struck down by the Supreme Court in its 1978 Bakke decision. The school that adopted the quota in Bakke did not do so out of an abstract desire to achieve a quota; it did so because it believed that the quota provided certain educational benefits, such as remedying past discrimination, providing more minority doctors and graduates, and promoting diversity. Nevertheless, the Supreme Court struck down the quota, because ends don’t justify the means. The fact that the school did not pursue a quota for its own sake was not a defense).
The fact that Commentator and the Seattle School District support numerical goals because of the educational benefits they believe somehow flow from numerical goals, rather than just for the sake of the goals themselves, does not change the fact that they support numerical goals.
As Aristotle observed in Nichomachean Ethics, people don’t support goals for their own sake, but rather for the benefits they produce. But the fact that a goal is sought as a means to an end doesn’t mean that the goal is not sought.
Finally, as I have noted above, those purported benefits are illusory; racial balance and numerical goals are not hallmarks of a successful school system. Racial balance has very little effect on educational achievement, as the brief of David Armor, et al., shows.
Indeed, students often thrive intellectually and socially in school systems where there are very few students from other races.
Educational achievement, and especially achievement in math, is especially good in the upper Midwest, where almost all students happen to be white. These students perform better on average than white students in the south and West who attend more ethnically mixed schools.
And as Justice Thomas and others have observed, many historically black colleges, which have few students of other races, have been quite successful at graduating high-achieving black professionals, despite the fact that many of their students have to overcome considerable socioeconomic barriers and other obstacles.
Comment by Hans Bader — August 29, 2006 @ 11:13 am
Hans Bader: “And as Justice Thomas and others have observed, many historically black colleges, which have few students of other races, have been quite successful at graduating high-achieving black professionals, despite the fact that many of their students have to overcome considerable socioeconomic barriers and other obstacles.”
Then I suppose all black kids should be confined to historically black colleges and universities. Hey, waitasecond, isn’t that segregation…? I now see the focal point of our disagreement, Hans. You support racial segregation. I do not.
Thanks, Rick Nagel, for your insightful post.
Comment by Commentator — September 18, 2006 @ 12:34 pm
Hans Bader: In other words, the school district IS interested in pursuing numerical goals, just not solely “for the sake of numerical goals.”
Actually, Hans, the above is terrible logic.
Saying Person X is not interested in doing X for the sake of doing X could mean: a. he is interested in doing X, but for other reasons; or b. he is not interested in doing x for the sake of doing x, or any other reason.
I meant the latter(b.). The only reason I used the “for the sake of” language was to rebut your specific charges, i.e., that they were pursuing numerical goals for the sake of pursuing numerical goals.
I hope better logic is behind your Enron-was-good, Sarbanes-Oxley-is-bad lawsuit.
Comment by Commentator — September 18, 2006 @ 12:38 pm
Rick Nagel: Still, the District has no satisfactory explanation for its failure to consider a lottery or free/reduced price lunch status as tiebreakers.
Sure it does. The lottery is random, so its distribution doesn’t counteract the racially segregated housing patterns. This is in the majority opinion.
Comment by Commentator — September 18, 2006 @ 12:41 pm
Rick Nagel: If the goal is to achieve a racially/ethnically integrated environment in each school in the district, that goal would be paramount whether the school was over or undersubscribed.
The goal is not to acheive a racially/ethnically integrated environment in each school in the district.
Comment by Commentator — September 18, 2006 @ 12:42 pm
Commentator is mistaken, both about the Seattle Schools’ unnecessary and divisive use of race in school assignments and about the burdensome and costly Sarbanes-Oxley law.
As for Commentator’s ridiculous claim that I support racial segregation in education, it’s worth noting that I would have nothing to gain from such segregation (and I certainly oppose segregation).
Many of my family members are non-white or Hispanic. For example, a sister-in-law and nephew of mine are of Korean ancestry. My wife is an immigrant partly of Spanish ancestry. Approximately one-fifth of the guests at my wedding were black. I certainly don’t practice racial segregation.
Under the Seattle Schools’ policy, which groups together all non-whites into one group, and all whites into another group for school assignment purposes, my nephew would be grouped with all other non-whites, and treated as part of an undifferentiated mass.
Contrary to the Seattle Schools’ claims, I don’t see how that promotes “diversity.”
Because the Seattle Schools treat all minorities as an undifferentiated mass, if there are a lot of minorities of one type (say, African-Americans) present at a school, the Seattle Schools’ policy could actually bar students from a previously unrepresented minority group (say, Koreans) from being admitted there on the grounds that there are already “too many” other minorities at the school, thus reducing the number of racial groups represented at the school (and thus reducing racial diversity). The Seattle Schools’ policy can actually operate to promote segregation.
Strangely, Commentator imputes to me the idea that “Enron-was-good,” when I have repeatedly criticized the crimes and breaches of fiduciary duty at Enron, and made suggestions for reforms of corporate law (such as expansions of shareholder rights to enable them to remove entrenched incompetent management) to prevent corporate mismanagement in the future. See, e.g., http://www.cei.org/gencon/019,05181.cfm
The whole point of my criticism of the Sarbanes-Oxley law is that it fails to address the root causes of the Enron scandal and instead wastes billions of dollars of company time on minutiae, such as internal-controls regulations that focus on trivia like which employee has access to which computer password.
Moreover, the board Sarbanes-Oxley set up to regulate accounting violates the strictures of the Constitution’s appointments clause.
Finally, as I once noted in the Investors Business Daily, “Ironically, many of the practices Sarbanes-Oxley imposes on American business . . . were present at Enron.”
Comment by Hans Bader — October 2, 2006 @ 11:26 am