(The following is a re-post from my own blog):
The Supreme Court ruled that Seattle and Kentucky public schools cannot use race as a tie-breaking factor in placing students in districts. Seattle, which had never been segregated by state law, placed students in districts according to the student’s selection of school. The tie-breaking factors, in order, are:
- students who have a sibling in the chosen school;
- students whose race (white or non-white) would help put the chosen school within 10 percentage points of the district as a whole; and
- student's geographic proximity to the chosen school.
Predicatably, the Court determined that this scheme violates the Equal Protection Clause. Seattle was never segregated by the government, so there is no compelling state interest in undoing prior harm. (As a logical matter, it is not the job of the government to reverse or ameliorate conditions that it was never responsible for in the first place.)
The Court did not look favourably upon the fact that the school districts only looked to race as a factor in diversity. The Grutter system (arguably, although not in fact) used other factors to examine “diversity,” of which race was but one. Seattle insisted on using race in a mechanical manner (i.e. without examination of the entire individual); and, when used, it is a decisive factor.
Segregation, Integration, and Brown: There has been a lot of criticism from left-leaning legal scholars who are upset that the Court cited Brown v. Board while holding that a desegregation plan is invalid. Before Brown v. Board was decided, the NAACP litigated many cases under the “separate but equal” standard of Plessy. Segregated schools did not merely bring a psychic injury to black children; they were noticeably inferiour to white schools. The NAACP used that as a basis for litigation for many years; eventually, it decided that a frontal attack on Plessy would be more efficient.
Brown was a shortcut to equal facilities (sorely lacking in the Jim Crow era) as well as an affirmation of black equality, not a mandate of quotas or diversity. The Seattle school district - and those who oppose the Parents Involved plurality opinion - bring forth no complaint about the core Brown issues of inferiour facilities or an imprimatur of inequality. There is no evidence that the schools in predominately black neighbourhoods are noticeably worse than those in predominantly white areas, nor is there any evidence that forced integration increases the self-worth of young black children.
Even if the schools in black neighbourhoods were worse, the correct response is one that addresses the relevant harm - i.e. improvement of the majority-minority schools so that all students can receive a quality education, regardless of residence. The incorrect solution (albeit the one chosen by the Seattle district) would be to shuffle students around so that educational inequality is doled out fairly to those of all races, although justly to none of the students forced to receive an education in sub-par schools.
Limiting Grutter to universities: The plurality opinion declined to overrule or even gut Grutter. Given that it was decided in 2003, there is little reason to defer to it under stare decisis principles. The Court chose to limit its reach to higher education (which, constitutionally, is nonsense: there is no asterisk or footnote in the Fourteenth Amendment which limits its scope to K-12 schools) and stated that its standards had not been met: the Parents Involved decision affirms the principles in Grutter.
Diversity: Chief Justice Roberts demonstrated that the definitions of “diversity” used do not encompass any rational notion of racial diversity, let alone diversity in other arenas.
The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment,” App. in No. 05–908, at 128a, 129a. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter, supra, at 329.
States may discriminate on the basis of race so long as such discrimination is “narrowly tailored to meet a compelling state interest.” Most Fourteenth Amendment jurisprudence is focused either on the first clause (whether or not the relevant law is narrowly tailored to the need in question) or the second clause (state interest). Very little jurisprudence is focused on whether or not the relevant law actually, concretely, “meet[s]” the asserted interest. The Court often seems loathe to determine if a law has its intended effect or if its rationale is mere conjecture.
While many neighbourhoods can be delineated along racial lines, they are almost always segregated by income (and thereby by other family circumstances, such as parental education and marital status). Here, race is a decisive factor whenever employed, not one of many - even one that many trump the educational needs of students. Seattle does not express the desire to distribute students among schools based on race, religion, socio-economic status, or the marital status of their parents. As in the Jim Crow South, race is the sole factor in sorting students. Is this any less odious simply because the ends are different?
Critical Mass:Grutter was justified, in part, under the theory that affirmative action is needed to bring in a “critical mass” of minority students. There seems to be little agreement as to what percentage of students constitutes the critical mass in question.
Even if such a percentage could be determined with mathematical precision, there is no sane way to reach this critical mass if the relevant population would not provide enough students. For example, if the critical mass in question were 20% minority, many schools will automatically fall below this critical mass if only 5% of the eligible students are minorities. Would a scheme whereby 8% of the students are minorities instead of 5% be constitutionally valid, even if 8% is still short of the critical mass and denies enrollment to other qualified students?
De jure v. de facto segregation and the negative effects of affirmative action: C.J. Roberts did not address two factors in his decision: the social reasons for self-segregated housing and the harm brought to students, beyond the stigma of competing in a race-based system. Often, members of a minority group will feel more comfortable in neighbourhoods made up predominately of their race. This self-segregation is not the result of discrimination (i.e. forcing blacks out of nice areas), but is often the result of comfort - much in the way that many top female high schoolers will seek out Wellesley or Smith for college.
Often, parents will want their children to go to school with their neighbours, whether it be for the convenience of car-pooling, knowing that their children will have friends in their classes, or increasing their ties to the community - in fact, using the children to create a community within the neighbourhood. A system whose aim is to dissolve the connection between a neighbourhood and the schools will only undermine these goals.
One of the children denied entrance to the school of his choice suffers from ADHD and dyslexia. His teachers suggested a small, hands-on school that would best meet his needs. As a plaintiff, he is entirely sympathetic: his educational needs are considered secondary to the vague notion of “diversity.” Ideally, the purpose of public education is to ensure that there is an educated populace; the racial classification system not only ignores this purpose, it undermines it in the name of diversity. There is also something very silly about sending elementary-school children ten miles away from home when there is a perfectly good school just around the corner.
