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The Return of Equality?
The Supreme Court will consider affirmative action again.
By Roger Clegg
On Monday, the Supreme Court granted review in two cases that present the issue of whether, in the name of “diversity,” public-school systems can discriminate on the basis of race in assigning students to schools at the K-12 level: Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education.
This is a big deal. Among other things, we will see what kind of approach Chief Justice Roberts and Associate Justice Alito will take in racial-preference cases.
In the Seattle case, the school district uses race as the number-two tiebreaker (first is already-enrolled siblings) in determining admission to oversubscribed high schools. That is, if you want to go to a school that is already considered disproportionately white, you can get in only if you are non-white; and if you want to go to a school that is already disproportionately non-white, you can get in only if you are white.
The other case is from Louisville. Here, too, in order to ensure that each school achieves an appropriate racial mix, the trial court found that “a student’s race, whether Black or White, could determine whether that student receives his or her, first, second, third or fourth choice of school.”
Should conservatives be happy or worried that the Court granted review? Both.
The old saw is that the Court does not grant review in cases it plans to affirm, and the lower courts in these two cases upheld the school districts’ racial discrimination. The fact that a third federal court of appeals, in a case involving yet another race-based assignment plan—this one in Lynn, Massachusetts—ruled the same way gives added hope that the Court is not happy with the trend below and wants to stop it. Certainly, it would have been disappointing if the Court had denied review in all these cases and allowed the discrimination to continue.
That said, the fact that review was granted now means that it is possible that we could get a bad Supreme Court ruling. Is that possible? Certainly.
The proponents of race-based assignments will argue that, just as the Court recognized in its 2003 University of Michigan rulings that there are “educational benefits” from “diversity” at the university level, so it should recognize that there are similar benefits at the K-12 level. Students are students and schools are schools, right? Well, in fact, there are some clear distinctions between the university and K-12 contexts.
First, the Court has always emphasized the deference it would pay to universities, because of First Amendment principles of academic freedom. In its University of Michigan rulings, it said that “universities occupy a special niche in our constitutional tradition.” It has paid no such deference, and rightly so, to school boards that want to engage in racial discrimination.
Second, the “educational benefits” of diversity in universities stem from the “robust exchange of ideas” that students from varying backgrounds and perspectives can then share. One can question whether a “robust exchange of ideas” is to the same degree beneficial—indeed, whether it is beneficial at all—in a kindergarten class. Even Harvard University’s left-wing Civil Rights Project acknowledged this point in its analysis of the University of Michigan rulings. Education is typically more structured, more top-down, in elementary and secondary school. As dubious as the social-science evidence for “educational benefits” was in the University of Michigan cases, it is even thinner here.
Third, the Court stressed in the University of Michigan cases that students were to be given “individualized consideration”—not treated mechanically just because of skin color, but evaluated holistically, with race as just one factor among many. Accordingly, it struck down the undergraduate admissions “point” system, and upheld the supposedly more holistic law-school system. But Seattle and Louisville use race even more mechanically than did the UM undergraduate system. It also seems unlikely that there are no race-neutral alternatives to the preferential K-12 admission systems—another element of the “narrow tailoring” that the Court insisted on in the UM cases.
Of course, conservatives thought they would win the University of Michigan cases, too, and we didn’t. Here are three lessons for us to keep in mind over the next few months.
1. Lining up supporting friend-of-the-court briefs is important. The single most important amicus brief will be the one filed by the U.S. Solicitor General—assuming he files one. The Bush administration filed a couple of lackluster briefs in the University of Michigan cases; it must do better this time, and the Republican base must make that clear. You can be certain that the Left will try to get various educator groups—teacher unions and the like—to argue in behalf of race-based assignments, and probably some businesses, too (just as they did in the UM litigation); it would be desirable to marshal some amicus briefs by conservative educators and businesses.
2. Counter the social-science claims of “diversity” benefits. Social-science data do not prove that racial balance equals better education—in particular, for blacks and Latinos. Abigail and Stephan Thernstrom marshaled much of the evidence in their excellent 2003 book, No Excuses: Closing the Racial Gap in Learning. The Seattle and Louisville school districts will make claims to the contrary, however, and their claims cannot be left unanswered. (It may also be worth reminding the Court that, once upon a time, school districts claimed that social science proved segregation to be essential to a sound education.)
3. Demonstrate that discrimination like Seattle’s and Louisville’s is, if not aberrant, at least not the rule. Educators at the K-12 level include, I have no doubt, plenty of politically correct bureaucrats. On the other hand, school systems are more democratically accountable than university admissions offices, and, since most parents don’t like their children to be told where they can and cannot go based on skin color, I also would suppose that there are many, many school districts that reject this nonsense. If they cannot be persuaded to file amicus briefs, the existence of these schools should at least be brought to the Court’s attention in someone else’s brief.
There is a majority of justices who are inclined to do the right thing here. They would like to distinguish and thus limit the University of Michigan decisions, and perhaps even begin to plant seeds of doubt about their continued viability. But because they are conservatives they will be worried if they are striking down a policy that everyone else—education officials at the federal, state, and local levels; social science and education experts; and parents—apparently likes. So the case has to be made to these conservatives that, if they do the right thing, they will not be all alone.
—Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined amicus briefs filed by the Pacific Legal Foundation that urged the Supreme Court to grant review in the Seattle and Louisville cases.
Full Version: The Return of Equality? The Supreme Court will
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From Alternet
Will Brown Go Down?
By Edward Lazarus, FindLaw.com.
Posted June 19, 2006.
The Supreme Court has agreed to hear two new cases that may finally spell the official end of desegregation.
Last week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Ky., and Seattle, Wash., the court's eventual decisions will directly affect hundreds of other school districts across the country that use race in some fashion in determining which students will attend which schools.
The decisions will also go a long way towards revealing whether our newly reconstituted court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the court's take on the highly contested legacy of Brown v. Board of Education.
Brown v. Board of Education is surely the most important legal decision of the 20th century. Its holding alone -- declaring unconstitutional the state-mandated racial segregation of public schools -- was momentous. But its meaning was larger still: Brown stands as a huge milestone in the long American journey to overcome the original sin of slavery and redeem the founders' promise of equality for all.
Although Brown generated enormous controversy and furious backlash in some quarters when it was first decided, the decision (if not every aspect of its analysis) has, by now, become almost universally accepted as constitutional gospel.
But for all its importance, and for all the praise it now receives from public officials and aspirants to judicial office, Brown's historical legacy is still very much in flux. After more than 50 years, we are still rethinking and reshaping what we believe Brown actually means -- both as a legal precedent and, more broadly, as the foundation stone for our constitutional commitments on the issue of race.
The leading commentator on Brown, Richard Kluger, described the opinion's moral and historical significance as "nothing short of a reconsecration of American ideals" -- rightly so. Yet we are still working out which ideals, exactly, the decision actually champions.
I remember my constitutional law professor, Burke Marshall (who had been head of the Civil Rights Division in the Kennedy administration) putting the following questions to me:
Does Brown mean only that states cannot require blacks and whites to go to separate schools?
Or, when Brown says that separate educational facilities are "inherently unequal," is it mandating some form of actual integration by creating a right for black school children to attend a racially mixed school?
Or, did Brown mean something in the middle? Did it mean that, on the one hand, states had to remedy their own affirmative acts of segregation by affirmatively eradicating the effects of past segregation, but, on the other hand, government did not otherwise have to provide for racially balanced school systems?
Or, alternatively, is Brown, when read against the backdrop of America's tragic history of race relations, best viewed as calling for a "color-blind" Constitution -- one in which government may basically never use race as a factor in its decision making, even when the government is seeking to help minorities instead of stigmatizing them?
Every one of these positions can be plausibly defended as a way to interpret Brown. In this sense, Brown is something of a Rorshach test for one's views about the nation's complicated history of racial oppression, and its attempts to rectify the consequences of this past.
Now, the new Roberts court -- as deeply divided about this issue as about any other, and including two new justices -- is about to take this test again.
The facts of the cases before the court
The first case, from Kentucky, involves what is known as a "managed choice" plan -- one in which the school district actively seeks to maintain racial balance in its schools. Jefferson County, Ky., which once ran a segregated system, administers its managed-choice system in a way that takes into account student-parental choice, while also ensuring that each of its schools maintains a minority enrollment of between 15 percent and 50 percent. The district as a whole is made up of roughly one-third minority students.
The second case, which comes from Seattle, Wash., involves an "open choice" plan. Under this plan, parents get to choose which school to send their children to. But when schools are oversubscribed, the school district uses certain "tie-breaking" factors to determine which applicants will actually get to attend the school of their choice.
Under some circumstances, those factors include race. Specifically, if an oversubscribed school is racially imbalanced -- meaning that the school's racial balance departs by more than 15 percent from the minority-majority balance of the district as a whole -- then the race of the applicant may be considered in the district's school placement decision.
Seattle's race tie-breaker can effect both white and minority students. A white student might be moved out of a school that had disproportionately few minorities, despite that student's preference, and by the same token, a minority student might be moved from a disproportionately minority school, despite the student's own choice.
The Jefferson County and Seattle programs survived constitutional challenges in the lower federal courts. Both the U.S. Court of Appeals for the Sixth Circuit (in the Jefferson County case) and the U.S. Court of Appeals for the Ninth Circuit (in the Seattle case) ruled that the respective placement programs did not violate the Equal Protection Clause of the Fourteenth Amendment.
Applying the rigorous test the Supreme Court mandates when governmental programs that use racial classifications are at issue, the two circuits deemed their respective programs "narrowly tailored" to advance "a compelling governmental interest."
In reaching this conclusion, the lower courts were applying the test with special attention to the Supreme Court's 2003 decision in Grutter v. Bollinger. There, a narrow majority of justices approved the University of Michigan Law School's affirmative action in admissions program and held that the government has a compelling interest in the societal and educational benefits that flow from diversity in the classroom.
As the Sixth and Ninth circuits recognized, the Jefferson County and Seattle plans sought to advance much the same kinds of interests that were involved in Grutter. In the view of the school districts, diversity in schools improves the critical thinking of students, improves race relations in the community and creates a healthier body politic by inculcating tolerance and other positive values in a new generation.
Neither the Sixth Circuit nor the Ninth Circuit saw any reason to second-guess the empirical and experiential views of these local educators about the compelling benefits of diversity. And, indeed, the court in Grutter had recognized the appropriateness of deferring to such local judgments.
But -- and it's a major " but" -- Grutter was a 5-4 decision in which Justice Sandra Day O'Connor, now retired, wrote the majority opinion. Her swing seat on race issues is now occupied by Justice Samuel Alito, who in the past has expressed quite conservative views on these matters, including a strong aversion to affirmative action. As a result, when the court hears the Jefferson County and Seattle cases, the Grutter-based principles that guided the lower courts will themselves be up for grabs.
Which brings me back to Brown and its legacy. It may be that Brown was never intended to require states to create and maintain integrated schools. And, to be sure, Brown stands as a cautionary tale about the government using race as a factor in its decision making.
But can it really be that the Constitution should be interpreted as preventing government officials from voluntarily seeking to maintain integrated schools, especially when they do so in a way that gives no racial preference and creates no racial stigma?
This is the point underlying a powerful opinion written by Ninth Circuit Judge Alex Kozinski, concurring in the decision upholding the Seattle plan. As Judge Kozinski correctly observes, the effort to maintain racial balance in public schools does not come with the poison that ordinarily infects the use of race by government. There is nothing about these plans that is designed to oppress racial minorities, as the pre-Brown apartheid system did. Nor do the pupil placement systems give one racial or ethnic group an edge over any other. Nor do the programs promote segregation of the races, which can be an evil in itself.
We should blind ourselves to these nuances, Judge Kozinski wisely counsels. Under the Lexington and Seattle plans, individual white and minority students alike may be disappointed in their ultimate school assignment. But in creating these disappointments, school officials are placing no value on one race or another. They are simply seeking to ensure that their schools bear some racial resemblance to their communities as a whole, while recognizing the important truth that we all benefit from developing an ability to interact with those who come from different cultural and racial backgrounds than our own.
Those who advocate a kind of purely color-blind Constitution that would prohibit the Lexington and Seattle programs often quote Martin Luther King Jr.'s famous dream about a nation in which his children would be "judged by the content of their character and not by the color of their skin." Fair enough.
But that wonderful speech had another image in it. King also dreamed of day when little black boys and girls would join hands with little white boys and girls as brothers and sisters. This was a dream, I would argue, that had its birth in Brown.
It is no secret that our public schools remain, as a practical matter, largely segregated -- notwithstanding Brown and all the progress that has been made with respect to racial equality. It would be a tragedy if the Supreme Court abandoned King's dream by prohibiting elected officials from bringing kids of every color to every schoolyard, so that the hand-holding of the next generation may begin.
Edward Lazarus is a FindLaw columnist and the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."
Will Brown Go Down?
By Edward Lazarus, FindLaw.com.
Posted June 19, 2006.
The Supreme Court has agreed to hear two new cases that may finally spell the official end of desegregation.
Last week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Ky., and Seattle, Wash., the court's eventual decisions will directly affect hundreds of other school districts across the country that use race in some fashion in determining which students will attend which schools.
The decisions will also go a long way towards revealing whether our newly reconstituted court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the court's take on the highly contested legacy of Brown v. Board of Education.
Brown v. Board of Education is surely the most important legal decision of the 20th century. Its holding alone -- declaring unconstitutional the state-mandated racial segregation of public schools -- was momentous. But its meaning was larger still: Brown stands as a huge milestone in the long American journey to overcome the original sin of slavery and redeem the founders' promise of equality for all.
Although Brown generated enormous controversy and furious backlash in some quarters when it was first decided, the decision (if not every aspect of its analysis) has, by now, become almost universally accepted as constitutional gospel.
But for all its importance, and for all the praise it now receives from public officials and aspirants to judicial office, Brown's historical legacy is still very much in flux. After more than 50 years, we are still rethinking and reshaping what we believe Brown actually means -- both as a legal precedent and, more broadly, as the foundation stone for our constitutional commitments on the issue of race.
The leading commentator on Brown, Richard Kluger, described the opinion's moral and historical significance as "nothing short of a reconsecration of American ideals" -- rightly so. Yet we are still working out which ideals, exactly, the decision actually champions.
I remember my constitutional law professor, Burke Marshall (who had been head of the Civil Rights Division in the Kennedy administration) putting the following questions to me:
Does Brown mean only that states cannot require blacks and whites to go to separate schools?
Or, when Brown says that separate educational facilities are "inherently unequal," is it mandating some form of actual integration by creating a right for black school children to attend a racially mixed school?
Or, did Brown mean something in the middle? Did it mean that, on the one hand, states had to remedy their own affirmative acts of segregation by affirmatively eradicating the effects of past segregation, but, on the other hand, government did not otherwise have to provide for racially balanced school systems?
Or, alternatively, is Brown, when read against the backdrop of America's tragic history of race relations, best viewed as calling for a "color-blind" Constitution -- one in which government may basically never use race as a factor in its decision making, even when the government is seeking to help minorities instead of stigmatizing them?
Every one of these positions can be plausibly defended as a way to interpret Brown. In this sense, Brown is something of a Rorshach test for one's views about the nation's complicated history of racial oppression, and its attempts to rectify the consequences of this past.
Now, the new Roberts court -- as deeply divided about this issue as about any other, and including two new justices -- is about to take this test again.
The facts of the cases before the court
The first case, from Kentucky, involves what is known as a "managed choice" plan -- one in which the school district actively seeks to maintain racial balance in its schools. Jefferson County, Ky., which once ran a segregated system, administers its managed-choice system in a way that takes into account student-parental choice, while also ensuring that each of its schools maintains a minority enrollment of between 15 percent and 50 percent. The district as a whole is made up of roughly one-third minority students.
The second case, which comes from Seattle, Wash., involves an "open choice" plan. Under this plan, parents get to choose which school to send their children to. But when schools are oversubscribed, the school district uses certain "tie-breaking" factors to determine which applicants will actually get to attend the school of their choice.
Under some circumstances, those factors include race. Specifically, if an oversubscribed school is racially imbalanced -- meaning that the school's racial balance departs by more than 15 percent from the minority-majority balance of the district as a whole -- then the race of the applicant may be considered in the district's school placement decision.
Seattle's race tie-breaker can effect both white and minority students. A white student might be moved out of a school that had disproportionately few minorities, despite that student's preference, and by the same token, a minority student might be moved from a disproportionately minority school, despite the student's own choice.
The Jefferson County and Seattle programs survived constitutional challenges in the lower federal courts. Both the U.S. Court of Appeals for the Sixth Circuit (in the Jefferson County case) and the U.S. Court of Appeals for the Ninth Circuit (in the Seattle case) ruled that the respective placement programs did not violate the Equal Protection Clause of the Fourteenth Amendment.
Applying the rigorous test the Supreme Court mandates when governmental programs that use racial classifications are at issue, the two circuits deemed their respective programs "narrowly tailored" to advance "a compelling governmental interest."
In reaching this conclusion, the lower courts were applying the test with special attention to the Supreme Court's 2003 decision in Grutter v. Bollinger. There, a narrow majority of justices approved the University of Michigan Law School's affirmative action in admissions program and held that the government has a compelling interest in the societal and educational benefits that flow from diversity in the classroom.
As the Sixth and Ninth circuits recognized, the Jefferson County and Seattle plans sought to advance much the same kinds of interests that were involved in Grutter. In the view of the school districts, diversity in schools improves the critical thinking of students, improves race relations in the community and creates a healthier body politic by inculcating tolerance and other positive values in a new generation.
Neither the Sixth Circuit nor the Ninth Circuit saw any reason to second-guess the empirical and experiential views of these local educators about the compelling benefits of diversity. And, indeed, the court in Grutter had recognized the appropriateness of deferring to such local judgments.
But -- and it's a major " but" -- Grutter was a 5-4 decision in which Justice Sandra Day O'Connor, now retired, wrote the majority opinion. Her swing seat on race issues is now occupied by Justice Samuel Alito, who in the past has expressed quite conservative views on these matters, including a strong aversion to affirmative action. As a result, when the court hears the Jefferson County and Seattle cases, the Grutter-based principles that guided the lower courts will themselves be up for grabs.
Which brings me back to Brown and its legacy. It may be that Brown was never intended to require states to create and maintain integrated schools. And, to be sure, Brown stands as a cautionary tale about the government using race as a factor in its decision making.
But can it really be that the Constitution should be interpreted as preventing government officials from voluntarily seeking to maintain integrated schools, especially when they do so in a way that gives no racial preference and creates no racial stigma?
This is the point underlying a powerful opinion written by Ninth Circuit Judge Alex Kozinski, concurring in the decision upholding the Seattle plan. As Judge Kozinski correctly observes, the effort to maintain racial balance in public schools does not come with the poison that ordinarily infects the use of race by government. There is nothing about these plans that is designed to oppress racial minorities, as the pre-Brown apartheid system did. Nor do the pupil placement systems give one racial or ethnic group an edge over any other. Nor do the programs promote segregation of the races, which can be an evil in itself.
We should blind ourselves to these nuances, Judge Kozinski wisely counsels. Under the Lexington and Seattle plans, individual white and minority students alike may be disappointed in their ultimate school assignment. But in creating these disappointments, school officials are placing no value on one race or another. They are simply seeking to ensure that their schools bear some racial resemblance to their communities as a whole, while recognizing the important truth that we all benefit from developing an ability to interact with those who come from different cultural and racial backgrounds than our own.
Those who advocate a kind of purely color-blind Constitution that would prohibit the Lexington and Seattle programs often quote Martin Luther King Jr.'s famous dream about a nation in which his children would be "judged by the content of their character and not by the color of their skin." Fair enough.
But that wonderful speech had another image in it. King also dreamed of day when little black boys and girls would join hands with little white boys and girls as brothers and sisters. This was a dream, I would argue, that had its birth in Brown.
It is no secret that our public schools remain, as a practical matter, largely segregated -- notwithstanding Brown and all the progress that has been made with respect to racial equality. It would be a tragedy if the Supreme Court abandoned King's dream by prohibiting elected officials from bringing kids of every color to every schoolyard, so that the hand-holding of the next generation may begin.
Edward Lazarus is a FindLaw columnist and the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."
This is going to be the end of Brown.
Then it will be end the of the Voting Rights and Civil rights acts
And then it will say the Father's only meant who was considered equal when it was written
And then ALL people in this country will be worthless, no matter your race or color
Then they will have won yet another step
To quote one of the biggest arseholes of the world"There is no difference between George Bush and Al Gore".
See, Ralph Nader, can you look anyone, howabout yourself in the mirror and say there is no difference between George Bush and Al Gore.
What a schmuck, huh Ralphie boy? What a fool. At one point we all looked up at you and thought how smart you were. See what you and Billyboy wrought?
And when the decisions come down, add Roe V. Wade to another fallen thing
Starry decicis? What happened 12/12/2000 is what is the decicis of it all.
Next time someone tells you there is no difference between the right and the left, look the person straight in the eye, and spit in it.
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