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.”

The goal is not to acheive a racially/ethnically integrated environment in each school in the district.

Sure it does. The lottery is random, so its distribution doesn’t counteract the racially segregated housing patterns. This is in the majority opinion.

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.

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.

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.

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.

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.

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.

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.

I absolutely did not “suggest” that. And by the foregoing sentence, I am certainly suggesting that you are a liar.

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.

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.”