« Supreme Court Activity: A Few Days Ago... | Main | Judges As Rock Stars »
Monday, December 04, 2006
Today's Race-Based School-Assignment Cases
This morning the Supreme Court is hearing argument in Parents Involved v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education. The cases have received much attention, as can be seen from Howard's collection of articles, and the Court's decision to make audio available immediately after argument. The case is particularly interesting for me because this is the case on which my constitutional law students wrote their mid-term papers. Both sides are painting this case as Brown v. Board of Education III, with the petitioners complaining that they have been forced because of their race to travel long distances to go to school, and with the schools responding that Brown's promise of interracial education can be fulfilled only with a plan approximating those involved in these cases.
I think there is a very good chance the school-assignment plans will be held unconstitutional, and I think there is a decent chance that it will not be 5-4. Once I listen to the argument I might feel differently, but I think both plans are too overtly focused on racial balancing for the Court to stomach. There are, of course, good arguments on both sides of the case and the issue, but I can't imagine the Court approving a plan that so crudely attempts to create racial diversity as to divide all students into two "races" ("white"/"non-white" or "black"/"other"). I have my doubts about whether a diversity plan that considers only racial diversity can survive constitutional scrutiny, even in the grade-school context, but even if it is constitutional to focus only on race, I don't think it will be held constitutional to do it in this way.
Posted by Michael Dimino on December 4, 2006 at 11:41 AM in Constitutional thoughts | Permalink
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d83500daca69e2
Listed below are links to weblogs that reference Today's Race-Based School-Assignment Cases:
Comments
I'm a non-lawyer, and anyway, this thread may be dead by now, but: first of all, Simon elides the distinction between attention to race and racial discrimination. I'm sure there's a body of law and scholarship on this, but it is not, er, staggeringly obvious that a desegregation program constitutes discrimination.
Second, it may have been a flash of clarity to say that "the moral imperative of racial neutrality is the driving force of the equal protection clause," but it is not so obviously a flash of accuracy. The phrase "equal protection of the laws" is certainly not intuitively interpreted as synonymous with "racial neutrality". And racial neutrality is not a moral imperative, either. Racial equality is a better candidate for the status of a moral imperative (as well as an intuitive interpretation of "equal protection"); it remains open whether, in any given case, neutrality is the best way to operationalize or achieve equality. I think a strong case can be made that in the current educational/residential system it's not.
Further, in Jefferson County, at least, this is, if I'm not mistaken, the third or fourth attempt at desegregating the schools. The current plan was instituted after a previous challenge, in 2000, went to the Supreme Court. I'm not sure exactly what to make of that track record of failure, except that it speaks in favor of the school districts' claim that, as Michael puts it, "Brown's promise of interracial education can be fulfilled only with a plan approximating those involved in these cases." What are the alternatives? There seem to be three:
1. A system of neighborhood schools--where people were assigned to schools in their neighborhood--would, in the context of residential segregation, constitute de jure, not merely de facto, segregation in education, since it would create overwhelmingly monochromatic school districts and mandate people to go to schools that were overwhelmingly attended by students of one race or the other (with "one race or the other" in scare-quotes, but used because appropriate to the history of jim crow in this country).
2. Alternatively, a system of random school assignments would be possible but would be unbelievably more burdensome. So what is another alternative?
3. Complete choice about which school to attend? Given the otherwise-odd interest of the Competitive Enterprise Institute in this case, I bet this is what's underlying at least some of the plaintiffs' supporters, such as Hans above. If that's what's really going on, then please, let's have that argument rather than pretend to actually believe that desegregation constitutes discrimination, or that there are some easy and burden-free ways to desegregate in a context of residential segregation. I think there are compelling arguments against wide-open school choice, at least given the educational system we're likely to have at any point in the foreseeable future; but that is a separate argument from whether desegregation constitutes discrimination.
Posted by: Avery | Dec 11, 2006 10:40:16 AM
The school districts rest their position on the dubious claim that school officials deserve broad deference when they use race, even though other government officials, such as prison administrators and city councils, receive no such deference under Supreme Court precedent.
Justice Kennedy asked in the Meredith case whether deferring to schools' decision to use race in student assignment will allow schools that "want to play the race card" to do so.
His concern seemed to be that a race-based assignment policy defended in court as promoting racial integration or a melting pot may actually reflect other motives, perhaps rooted in racism.
That risk is very real, as the briefs in the companion case, the Seattle case (Parents Involved in Community Schools v. Seattle School District No. 1), shows.
Although the Seattle Schools convinced a Ninth Circuit judge, in his concurrence, that their use of race was designed to promote a "melting pot," they have taken the exact opposite position elsewhere, contradicting their argument to the courts that they are using race as a temporary measure to promote integration and a melting pot, rather than as a permanent system of racial quotas.
Indeed, the Seattle Schools have made bizarre, racially-charged public statements. They have publicly taken the position, in statements to the public at large, that:
(1) "Concepts such as a melting pot" are failures that should be rejected;
(2) "Individualism" is a form of "cultural racism";
(3) planning ahead is a white characteristic that it is racist to expect minorities to exhibit; and
(4) only whites can be racist.
The Competitive Enterprise Institute documents the above claims in its amicus brief in the Seattle case, which is available at:
http://www.cei.org/pdf/5482.pdf .
Posted by: Hans Bader | Dec 4, 2006 8:41:28 PM
In terms of principal, I find it staggering that supporters of the school boards can call these cases Brown III, given that Brown I held that "racial discrimination in public education is unconstitutional." Brown II, 349 U.S. 294, 298 (1955). These cases are not about government-mandated segregation, as Justice Scalia noted at oral argument, they are about whether the government may take race into account in distributing children among schools in pursuit of the laudable goal of racial diversity. Those means - not the goal, but the means - put the instant cases on a collision course with the proposition that "racial discrimination in public education is unconstitutional." That statement is eviscerated if the school boards prevail today, and for that reason, I would maintain that if anyone can evoke Brown in support of their cause, it is the petitioners.
In more practical terms, I have some confidence that the good guys are going to win this case. While it is obvious that the school boards had four votes before the petition was even filed, I cannot see where the fifth vote comes from. From Justice Kennedy? Surely not. Kennedy went out of his way in his Grutter dissent to make explicit what might be inferred from his joining the Chief Justice's opinion in Gratz: that he views racial classification as a permissible criterion only where it can survive under strict scrutiny. Moreover, in one of his occasional flashes of clarity, Kennedy wrote in Richmond v. Croson that "[t]he moral imperative of racial neutrality is the driving force of the Equal Protection Clause," and added that while "[t]he rule against race-conscious remedies is ... less than an absolute one, [because] that relief may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause," in cases where the Court is presented "with an ordinance and a legislative record open to the fair charge that it is not a remedy but is itself a preference which will cause the same corrosive animosities that the Constitution forbids in the whole sphere of government," he will vote to strike it down. Croson, 488 U.S. 469, 519 (1989) (Kennedy, concurring). A man who expects consistency from Justice Kennedy is a man who invites disappointment into his life, but in this case, I have a hard time believing that this program survives strict scrutiny, and so I have a hard time believing that Kennedy will rat.
Posted by: Simon | Dec 4, 2006 1:57:47 PM
I think one of the more interesting points in these cases has to do with the appropriateness of using Grutter's diversity rationale in the context of grade schoolers, some of them very young. Are kindergarteners already so "diverse," apart from their skin color, one from the other?
On another, also interesting (at least to me) question, I recall a post by Paul Horwitz discussing Justice Thomas's irritated Grutter dissent and the 'aesthetic' aspect of the diversity rationale. Does this point apply in the same way in this context? In a different way? Or not at all?
Posted by: md | Dec 4, 2006 12:35:04 PM
The comments to this entry are closed.