Court to release audiotapes of school cases
The Supreme Court will release on a same-day basis the audiotapes of the oral arguments next Monday, Dec. 4, in the two cases on the use of race in assignment of students to public schools. The Court’s press release can be found here. The cases test whether the Supreme Court’s ruling allowing some use of race in college admissions decisions apply to the K-12 public schools.
The Court will be hearing Parents Involved v. Seattle School District (05-908) at 10 a.m. Monday, and a case from Louisville, Ky., Meredith v. Jefferson County Board of Education (05-915) at 11 a.m. The audiotapes of each will be made available for public rebroadcast shortly after the conclusion of each of the arguments, the Court said.
This is the second time this Term that the Court has promptly released the audiotapes of arguments. It did so earlier in two abortion cases.
As is now the regular practice, the Court will be releasing on its website the written transcripts of all oral arguments, within about two hours after the conclusion of each argument.
It may be, as the above post argues, that the Seattle and Jefferson County “cases test whether the Supreme Court’s ruling allowing some use of race in college admissions decisions apply to the K-12 public schools.”
But even if the Supreme Court’s ruling allowing race to be used applies in K-12 schools, that will probably not be enough to save the race-based student assignment policies of the Seattle and Jefferson County schools. Those school districts use race far more rigidly, heavily, and mechanically than the Supreme Court has ever permitted in the educational context.
Even while allowing race to be used in college admissions, the Supreme Court was emphatic that race can only be used as one of many factors to promote diversity, and cannot be used to achieve racial balance. “Racial balancing,” it said, is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
Both Seattle and Jefferson County use race in a more mechanical fashion than did the University of Michigan’s undergraduate admission system, which was struck down in Gratz v. Bollinger, 539 U.S. 244 (2003), and they give even less weight to non-racial diversity factors than the University of Michigan’s admissions system, which the Supreme Court faulted for failing to sufficiently promote non-racial diversity. See id. at 272-74.
Although the school districts deny that they are engaged in racial balancing, news reporters, even those strongly sympathetic to affirmative action, have generally had no difficulty determining that racial balancing is exactly what the school districts are engaged in (and as noted earlier, the Supreme Court has said that “racial balancing” is “patently unconstitutional”). See, e.g., Charles Lane, “Court to Rule on Race-Conscious Assignment of Students to Public Schools,” Washington Post, June 5, 2006, at A3 (in the Seattle and Jefferson County cases, “each [school district] seeks to maintain racial balance”); Linda Greenhouse, “Supreme Court Roundup; Court to Weigh Race As a Factor in School Rolls,” New York Times, June 6, 2006, at A1 (”One difference between the Michigan decision [allowing race to be used in college admissions] and the new cases is that . . . the [Seattle and Jefferson County] school districts are trying to maintain [a racial] balance”).
Moreover, even if the school districts’ use of race were better tailored to promoting diversity, rather than racial balance, they would nevertheless be on constitutionally shaky ground because it does not appear that their race-based student assignment plans were adopted with diversity in mind.
For example, Jefferson County’s use of race originated in the remedial context, rather than to promote diversity, and diversity appears to be a post hoc rationalization. See Shaw v. Hunt, 517 U.S. 899, 904 n.4 (1996) (reviewing court must assess what “actually” motivated the government engaged in affirmative action, not what “may have motivated” it). Moreover, while Jefferson County could not be expected to drop its use of race overnight immediately after being declared unitary, the lack of any sunset provision for, or time limit on, its use of race likely prevents it from being narrowly-tailored as the Supreme Court’s 2003 Grutter decision requires (Grutter held that race-based admissions systems must have sunset provisions, and gave a 25-year time limit on the use of race even when used to promote diversity).
The Seattle Schools’ use of race does not seem to be a temporary measure to promote integration or diversity, as the Supreme Court’s precedents require, but rather a permanent commitment to racial balancing based on impermissible racial stereotyping.
The Seattle Schools have never been held to be racially segregated, and would be diverse even under a race-neutral admissions system.
Moreover, the Seattle Schools’ use of race actually undermines integration by preventing heavily underrepresented minorities, such as Hispanics and Asians, from being admitted to a school if there are already what the school system perceives as being “too many” blacks there. (See Center for Individual Rights amicus brief at pg. 7).
Moreover, the Seattle Schools do not appear to prize non-racial diversity, since they disparage intellectual diversity, preferring group think to individuality, and promoting precisely the invidious racial stereotypes that diversity is intended to dispell.
For example, the Seattle Schools’ web site has stated in the past that “individualism” is a form of “cultural racism,” has denigrated planning ahead (”future time orientation”) as a stereotypically white characteristic, and has said that only whites can be racists.
The Supreme Court has allowed race to be used only as a temporary measure to promote the long-run goal of a melting pot and a colorblind society. See Miller v. Johnson, 515 U.S. 900, 904 (1995) (Constitution’s “central mandate is racial neutrality in governmental decisionmaking”).
But the Seattle Schools have publicly disparaged the very concepts of colorblindness and the melting pot, stating that the district’s “intention is not . . . to continue unsuccessful concepts such as a melting pot or colorblind mentality.” (See Competitive Enterprise Institute amicus brief at pg. 3, quoting the Seattle Schools).
So the Seattle School District’s actual purpose does not appear to be the one required by the Supreme Court’s decision allowing the use of race in college admissions. See Shaw v. Hunt, 517 U.S. 899, 904 n.4 (1996) (reviewing court must assess what “actually” motivated the institution engaged in race-conscious policies, not what “may have motivated” it).
Comment by Hans Bader — November 27, 2006 @ 4:46 pm