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Supporting Racially Inclusive Schools

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28 Responses

  1. Patrick S. O'Donnell says:

    Very, very important post, and thus I’m quite grateful.

    One question: what might be done, legally speaking, about de facto segregation that exists in neighborhoods and cities? I’m not certain as to the precise causes, but I suspect lending policies still play a part here. And I think such segregation is not unrelated to that which persists in our schools (and about which Jonathan Kozol has tirelessly and eloquently informed us).

  2. Nom says:

    How does Harvard’s Robert Putnam’s new high-profile study on the negative effects of racial diversity affect this argument? If strict scrutiny does apply, the goivernemntal assertion that it is justified due to positive effects of diversity would seem undermined by Putnam’s findings on the ill effects.

    http://www.ft.com/cms/s/c4ac4a74-570f-11db-9110-0000779e2340.html

    The core message of the research was that, “in the presence of diversity, we hunker down”, he said. “We act like turtles. The effect of diversity is worse than had been imagined. And it’s not just that we don’t trust people who are not like us. In diverse communities, we don’t trust people who do look like us.”

    Prof Putnam found trust was lowest in Los Angeles, “the most diverse human habitation in human history”, but his findings also held for rural South Dakota, where “diversity means inviting Swedes to a Norwegians’ picnic.

  3. NJLS says:

    I am conflicted as to which I am more concerned about: that the Court might apply the strict scrutiny standard to the integration plans, or, that the local, voluntary efforts at issue would not pass the compelling interest/narrow tailoring requirements.

    Perhaps in the end we are not far enough removed from state sanctioned segregation under the guise of local control to comfortably apply a less exacting standard of judicial inquiry when evaluating the use of race in the structuring of school integration plans. As I understand it, there is a litany of studies demonstrating “the specific benefits to children from primary and secondary education in a multi-racial setting.” Thus, more likely than not, if the Court rejects the plan, it would be based on notion that the race-based arrangement is not narrowly tailored.

    While rejection of the plan on narrow tailoring grounds is less facially disturbing – in that it would at least recognize the compelling interest of an integrated learning environment – I would nonetheless find such rejection to be a blow to local government autonomy, and injurious to children whose parents voluntarily elect to participate in the integration plan. Hopefully, the liberal members of the Court recognize that there are a number of statutory and structural protections that could prevent pre-Brown abuses of local control, and at the same time, the conservative members recognize that a voluntary integration plan, generated by local political subdivisions, is no broader than is necessary.

  4. Astounded says:

    Shame on you!

    …these cases give the Court an opportunity to preserve some measure of integration in our public schools, or to end the era of Brown.

    If you bother to read it, you will discover that Brown was about ending the deliberate racial segregation of schoolchildren by local government, and says (paragraph 11 of the Opinion):

    Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

    I’m not familiar with the facts of the Jefferson School District case, but in Seattle the Board adopted a policy of explicit racial segregation! The Board has decided just how many students of each race it would prefer to attend each high school (allowing a small margin of deviation). District staff then assign students to schools by race until the Board’s racial quotas are met. Nothing could be more antithetical to the message of Brown, which is that local officials should not order students to go here or there just because of their skin color! (Imagine how you would feel, as a Seattle high school student, getting a letter from the District forbidding you to attend your preferred high school because of your skin color. Such letters are routine in Seattle.) So if the Supreme Court rightly strikes down the Seattle plan, it will thereby preserve and extend the “era of Brown.”

    (As for a desire to “preserve some measure of integration in our public schools” please note that Seattle never segregated its schools, and the evidence is uncontroverted that Seattle public schools would be fully integrated without assigning students by race. The Seattle Board is substituting its view of a proper “racial mixture” for the one which would obtain without government intervention. That is facially un-Constitutional racial discrimination.)

  5. Astounded says:

    As for Judge Kozinski’s ingenious “no need for scrutiny” argument–didn’t you notice that he re-invented Plessy v. Ferguson? “No competition between races”–well, that’s “separate;” “does not favor one race over the other”–that’s “but equal.” Kozinski tries to evade the logic of Brown: that separate can never be equal. He does so in a rather shameful way–recognizing that any examination of the Seattle plan under the relevant standards of 14th Amendment review as articulated by Brown (and all subsequent cases) would invalidate it, he advocates refusing to scrutinize the plan as the only path to leaving it intact. The only thing more sickening is the way the NAACP picks up this ball and runs with it in their amicus brief. “Do not,” they write, “look too closely at this plan. If you do you will see racial discrimination. We used to be against that but now we’re for it, so please, please, O Supreme Court, just look the other way. Defer to the same School Boards that you slapped down in Brown. Put Governor Faubus back in that door!” Bleah.

  6. Rachel Godsil says:

    In response to Nom’s post, I have not had a chance to read Putnam’s full study, but based upon the description provided in the link, his study does not directly address the social science underlying the findings that multiracial schools lead to better cross-racial understanding. Indeed, the findings in Putnam’s study may well support the importance of integrated schools. If people are living in separate neighborhoods, attending separate schools, and participating in different religious institutions, no wonder greater diversity leads to less trust. In an influential book from 1954, Gordon Allport explained the factors necessary for interracial contact to lead to reduce intergroup contact, equal status within the contact situation, intergroup cooperation, common goals, and the support of authorities, law, or custom. (I thank my colleague Tristin Green for this elucidation of Allport). In schools, these four factors can be met. In many towns or cities, by contrast, these factors are often not met.

    As to Astounded — I find the analogy between a city seeking to bring children and youth together and Southern Resistance to Brown inapt to say the least. The Jefferson County School District was under court order to desegregate prior to adopting the voluntary plan at issue in the case. While Seattle did not engage in de jure segregation, like many cities outside of the South, the city is racially segregated. The goal of educating our children in racially inclusive environments cannot be compared to de jure racial segregation. Plessy has in no way been revived.

  7. Astounded = Hans Bader says:

    I have a feeling that Astounded is the same person hijacking SCOTUSBLOG.

  8. What is the difference, if any, between this defense of the Seattle and Louisville school boards and the defense of busing to promote racial balance? Aren’t these plans simply busing redux, without the buses?

  9. Astounded says:

    Actually, I’ve never commented at SCOTUSBLOG and I’m not trying to hijack this blog. (I am trying to persuade this blogs’ authors that they’ve made errors. I realize this is difficult because of their emotional investment in the matter–it’s hard for an advocate to betray a cause even when she learns it is wrong.)

    Rachel, please, go read the 9th Circuit Seattle opinion. On the order of 10% of Seattle’s students are being assigned to schools by race. The plan does not “bring children and youth together,” it excludes many children from their preferred schools specifically because their skins are not the colors desired by the school board. I don’t think you can finesse that by mere euphemism. Suppose the Board used a lottery (or any other colorblind criterion) instead of racial classification as a “school assignment tiebreaker.” Would that be lawful and Constitutional? Obviously, yes. Suppose they implemented a scheme of sending all white kids to one school and all colored kids to another. Would that be lawful and Constitutional? Obviously, no. Can you really say their actual scheme of deporting some white kids and some black kids from specific schools–on no other basis than their race–is more like the first than the second? The Seattle Board is engaged in racism. It considers race more important than aptitude, more important than proximity (home-to-school), more important than teaching kids to treat everyone equally! There is no logical difference between the Seattle Board’s current policy and the Little Rock Board’s 1950 policy. In fact, the only distinction you can draw, the only distinction anyone has tried to draw, is that the Seattle Board wants a specific mix of races which is not 100/0% in school A and 0/100% in school B, but 60/40% A and 40/60% B.

    To the individual student who suffers adverse assignment due to her race, the specific racial mix preferred by the Board is of no interest. The victim of the discrimination suffers when her preferred school turns her away just because of her skin color. You cannot console her by saying that after all, there was a quota for students of her race–too bad it was filled before she got there!

    Look at that Brown quote again:

    To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community…

    (loc. cit.). The Seattle School District is teaching 10% of its students that in the view of the Board, in the view of local elected government, the students are not distinct human beings–they are just swathes of dark- or light-colored skin with legs. The Board does not need to teach this. It is a horrible, scarring falsehood that racial quotas are a “compelling government interest.” The Board has an infinitude of colorblind criteria for school assignment at its disposal. For the Board to assert (and for hordes of guilty compurgators filing amicus briefs to support) that it is compelled to assign students by race is factually false, morally perverse, and fundamentally evil.

  10. Hans Bader says:

    I am not “Astounded.” I post under my own name, which is more than can be said for the person who attacked me and “Astounded” using the cloak of anonymity.

    My posts at SCOTUSblog explain the fallacy of assuming that deviations from rigid proportionality in Seattle’s very diverse schools make it “segregated.”

    The cornerstone of many of the amicus briefs filed in support of using race in the K-12 cases is the erroneous assumption that any racial imbalance in a city or its schools makes it “segregated.”

    But Seattle, a very diverse city with very diverse schools, is not segregated as the Supreme Court defines the term, not by a long shot.

    In any event, the Supreme Court rejected the idea that racial imbalances make a school system segregated in cases such as Freeman v. Pitts (1992). Indeed, the Grutter decision those amici rely on cites Freeman v. Pitts for the proposition that “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003), citing Freeman v. Pitts, 503 U.S. 467, 494 (1992).

    The claim that Seattle’s schools are segregated “rests upon the ‘completely unrealistic’ assumption that” students of each racial group should be represented in each school “in lockstep proportion to their representation in the local population.” Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).

    As Justice O’Connor once observed in a ruling by the Supreme Court, “It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988). That’s true in education and housing just as it is in jobs.

    The fact that private discrimination may be occurring in Seattle (say, in housing) is not grounds for Seattle’s schools using race.

    Under strict scrutiny, the government can use race only to remedy its own past discrimination, not discrimination by private parties. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).

    Moreover, even discrimination by the government cannot justify the use of race now unless the discrimination is recent. See, e.g., Brunet v. Columbus, 1 F.3d 390 (6th Cir. 1993) (discrimination that occurred 17 years ago does not support affirmative action today).

    Moreover, as the Center for Individual Rights’ amicus brief notes on page 7, the Seattle schools’ policy actually excludes members of certain minority groups, such as Hispanics and Native Americans, from certain schools even when they are scarce because of the fact that other minority groups, such as blacks, are “overrepresented” in that school.

    Thus, the challenged Seattle policy actually causes, rather than remedies, segregation.

    This is because it lumps together all non-white minority groups into one undifferentiated mass, contrary to footnote 13 of the Supreme Court’s decision in Wygant v. Jackson Board of Education (1986).

    Thus, if there are already a lot of blacks at a school, but no Asians, my Korean-American nephew could be barred from enrolling there, to limit the overall numbers of minorities, even though my nephew’s Korean-language skills and culture might add some diversity to the school.

    As the amicus brief of the Asian American Legal Foundation notes, giving schools broad discretion to use race is likely to hit less politically connected minority groups, like Asians, even harder than whites. In the San Francisco public schools, it was Chinese American students who bore the brunt of the school system’s racial balancing policies, and they had to achieve an even higher score than whites or other minorities to gain admission to prestigious schools.

    Moreover, the Seattle schools have made peculiar claims about race that cast doubt on the wisdom of deferring to their judgment about using race:

    They have claimed that:

    1. “Individualism” is a form of “cultural racism”

    2. Only whites, not minorities, can be racists

    3. “Having a future time orientation” (planning ahead) is acting white and placing emphasis on it is racist.

    These bizarre claims by the Seattle schools are documented in pages two and three of the Competitive Enterprise Institute amicus brief in the Seattle case.

  11. Jacques McKenzie says:

    My problem with Mr. Bader’s argument is that it seems to be expanding the “color-blindness clause” of 14th Amendment at the expense of section 2 of the 13th Amendment. (No, no such clause is in the 14th Amendment. Indeed, the Slaughter-House Cases forbid such a reading.)

  12. Hans Bader says:

    I’m puzzled by Jacques McKenzie’s post. I disagree with him less than he may think.

    Section Two of the Thirteenth Amendment is a grant of power to CONGRESS (not school boards) of power to enforce that amendment (banning slavery) through appropriate legislation (such as by outlawing badges of slavery and other racially discriminatory relics).

    It doesn’t give any power to a school district to engage in race discrimination of its own, whether or not for a purportedly benign purpose (like the racial balancing involved in the Seattle and Jefferson County cases, which “racial balancing” is “patently unconstitutional,” according to the Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306, 330 (2003)).

    I didn’t argue that there was a colorblindness clause in the 14th Amendment (although there are some amicus briefs in the Seattle and Jefferson County cases that argue that the 14th Amendment does totally prohibit all consideration of race under any circumstances, I have not made that argument).

    I only argued that well-established Supreme Court precedent lays down a strict-scrutiny, compelling-interest test for using race, that the Seattle School District’s very crude form of racial balancing fails to satisfy.

    I have never argued that using race is inherently unconstitutional in all circumstances pursuant to a colorblindness principle.

    For example, race may be taken into account when necessary to remedy de jure segregation, or remedy the present effects of past discrimination committed by a school district.

  13. Jacques McKenzie says:

    Yes, and the First Amendment says “CONGRESS shall make no law” and yet it applies to the state legislatures.

    I would also note that the Fair Housing Act, which is under the 13th Amendment, is implemented by federal agencies, and that state agencies may be authorized to implement it as well. There is no reason why a grant to Congress precludes a cooperative federalism that permits state agencies, e.g., local school boards, to pursue their own measures. Certainly state legislatures may provide through their state constitutions greater 4th Amendment rights than the federal government. There is no reason why this should not also be true for the 13th Amendment.

  14. Hans Bader says:

    Jacques McKenzie makes a thought-provoking argument, but one that is already foreclosed by precedent.

    In Gratz v. Bollinger, 539 U.S. 244, 275-76 & n.13 (2003), the Supreme Court held that legislation implementing the Thirteenth Amendment — specifically, 42 U.S.C. 1981 — prohibited the same racial preferences as the Fourteenth Amendment, requiring that the Court strike down the University of Michigan’s undergraduate “diversity” admissions policy.

    The Court held that Title VI and 42 U.S.C. 1981 — which unlike the Fourteenth Amendment, reach even private schools — contain the same prohibitions on racial preferences contained in the Fourteenth Amendment.

    So in the eyes of the Supreme Court, the Thirteenth Amendment appears to limit race-conscious government action, and to not permit a broader range of affirmative action or “diversity” measures than would already be permitted under the Fourteenth Amendment.

    Thus, the constitutional violations in the Seattle School District’s race-based student assignment policy cannot be defended based on the Thirteenth Amendment.

    It is true, as Mr. McKenzie notes, that state constitutions can generally provide broader constitutional rights for their citizens than federal law does.

    But they cannot define one citizen’s rights more broadly under state law if it comes at the expense of another citizen’s federal Constitutional rights. Doing so would violate the federal Constitution and the supremacy clause.

    Washington state law can’t trump federal rights to be treated equally without regard to race under 42 U.S.C. 1981 and the Equal Protection Clause. See Garnett v. Renton School District, 987 F.2d 641, 646 (9th Cir. 1993)(right of religious group to equal treatment by school under federal Equal Access Act override discriminatory requirements of Washington State’s establishment clause; “state[s] cannot abridge rights granted by federal law. . .State law must therefore yield”).

    Thus, even if the Seattle School District were to expressly give its students the “right” to racially-balanced schools that it seeks to achieve through its policy, that could not overcome their classmates’ right to be treated equally under federal law, under which “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003).

  15. Jacques McKenzie says:

    Mr. Bader,

    You are only making my point.

    Limiting the Thirteenth Amendment’s scope through the Fourteenth is a recent trick. This trick is performed by reading a “color-blindness” clause into the Fourteenth Amendment. The invisible “color-blindness” clause violates both the plain text of the Fourteenth Amendment and its original meaning as captured by the Slaughter-House cases.

    The only support for your argument is raw judicial activism. Gratz v. Bollinger should be struck down for judicially amending the Thirteenth Amendment.

    Remarkably, Mr. Bader, it appears you oppose the abolition of slavery.

  16. Hans Bader says:

    McKenzie’s argument that agreeing with the Supreme Court’s 6-to-3 Gratz v. Bollinger decision in 2003, which rejected racial balancing and racial quotas in college admissions, makes one an opponent of the abolition of slavery is odd, to say the least.

    Were the six justices who joined in the Gratz decision also opponents of the abolition of slavery? I think not.

    I certainly do not oppose the abolition of slavery. I oppose arbitrary racial preferences, and slavery is the most extreme racial preference imaginable. I do oppose racial balancing, and I also oppose segregation.

    As the Asian American Legal Foundation points out in its amicus brief in the Seattle case, the logical result of racial balancing is to exclude members of high-performing minority groups, like Asians and Jews, from educational institutions under the theory that they are “overrepresented” in those institutions, resulting in racial “imbalance.”

    That is what happened in San Francisco, where Chinese-Americans had to score higher than whites or blacks to get admitted to prestigious schools.

    (In the Gratz case, the University of Michigan systematically discriminated against Asian-American and white applicants, while discriminating in favor of applicants from certain other minority groups).

    My ancestors weren’t present in America at the time of slavery. But they did oppose segregation in Virginia back in the days of segregationist Byrd machine, when it was, sadly, fashionable in the state to support segregation.

    The idea that I can somehow be blamed for slavery is ridiculous.

  17. Jacques McKenzie says:

    The idea that I can somehow be blamed for slavery is ridiculous.

    Well, you support the repeal of the Thirteenth Amendment. That certainly would enable one to reconstitute slavery. Likewise, destroying all vestiges of the Reconstruction, such as historically black colleges and universities, would enable one to reconstitute slavery. It is rather easy to assemble a caste out of the undereducated poor. I never blamed you for slavery; I observed that you oppose the abolition of slavery. That you responded to my argument at length suggests you think my assertion is true.

  18. Jacques McKenzie says:

    I oppose arbitrary racial preferences, and slavery is the most extreme racial preference imaginable.

    This is rhetoric. Slavery is not a “racial preference” — that would be like calling the Holocaust “a collection of deprivations of liberty”. It is a caste system. Either you are opposed to the creation of castes, or not.

  19. Hans Bader says:

    In addition to his ludicrous assertion that my agreement with a recent Supreme Court ruling (the Gratz v. Bollinger (2003) decision striking down discriminatory racial preferences at the University of Michigan) constitutes support for slavery, Mr. McKenzie also claims that Gratz v. Bollinger was “judicial activism” and should be overturned.

    Gratz v. Bollinger (2003) involved a lawsuit brought under Title VI of the Civil Rights Act, Section 1981, and the Fourteenth Amendment against a university that used race in admissions.

    Title VI expressly states, without any exception for racial preferences in admissions, that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

    Under Title VI’s plain language, “No person” shall be “subjected to discrimination” based on “race” or “color.”

    Thus, it was hardly activist for the Supreme Court in Gratz to strike down the University of Michigan’s undergraduate admissions policy, which concededly did discriminate against white and Asian applicants based on their race.

    (The only question in Gratz was whether the University had an adequate justification for discriminating based on race, not whether it discriminated based on race; it was an uncontroverted fact that it did in fact discriminate based on race).

    The Fourteenth Amendment may not mention colorblindness. But Title VI does emphatically ban “discrimination” based on “color,” and its text contains no exceptions to that ban.

  20. JR says:

    Just a small factual point. There is a strong case that Seattle, like Louisville, segregated its public schools. As in Boston and other northern cities, the segregation in Seattle was subtler than in the South, but the plaintiffs who threatened Seattle with a massive desegregation lawsuit in the early 1970s had solid evidence on their side.

    What happened was: Seattle settled. Unlike Louisville, which ended up in court-ordered mandatory desegregation, Seattle did desegregation on its own, instituting mandatory busing starting in middle schools in 1973 and in all schools in 1977, without any court order.

    It’s ironic that Seattle is now being held up as an example of a place with no past de jure segregation, when in fact if it wasn’t for Seattle’s progressive leadership at the time that was willing to compromise, a court would likely have found segregation — as in Boston, Louisville, and so many other cities throughout the long, sad history of de jure + de facto segregation of our schools.

    I hope the Supreme Court pulls back from the edge of the cliff of colorblindness here. The Fourteenth Amendment has never been colorblind — not when it was passed along with the Freedmen’s bureau, not when it was interpreted in Brown and subsequent cases to require RACE-CONSCIOUS integration of schools. Only since the 1970s have right-wingers promoted colorblindness as a reinterpretation — totally ahistorical — about what the Fourteenth Amendment and Brown were about.

  21. Jack Sprat says:

    The Fourteenth Amendment may not mention colorblindness. But Title VI does emphatically ban “discrimination” based on “color,” and its text contains no exceptions to that ban.

    Is Title VI at-issue in the Meredith case?

  22. Hans Bader says:

    Jack Sprat asks a good question.

    The Supreme Court is hearing two companion cases dealing with race-based school assignments: one from Seattle (the Parents Involved in Community Schools case) and one from Jefferson County Kentucky (the Meredith case).

    In the Seattle case, the parents’ brief expressly raises Title VI, so it clearly is at issue.

    But in Meredith, the parents’ brief doesn’t expressly mention Title VI, at least not the opening merits brief.

  23. Hans Bader says:

    One argument that ultimately fails is the claim that the Seattle Schools are justified in assigning students to schools based on their race because of a history of past segregation. It fails for multiple reasons, the first of which is that no court ever found the Seattle Schools to be segregated.

    A commenter argues that there was a serious chance that Seattle’s schools would have been found to be segregated had the issue been litigated back in the 1970s.

    In a similar vein, the School District’s brief argues that the Seattle Schools’ policy was intended to remedy de facto segregation (pg. 3).

    But many of the arguments that the schools were segregated rest “upon the ‘completely unrealistic’ assumption that” students of each racial group should be represented in each school “in lockstep proportion to their representation in the local population.” Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).

    As Justice O’Connor once observed in a ruling by the Supreme Court, “It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988). That’s true in education and housing just as it is in jobs.

    If there was a chance that the schools would have been found segregated, it would only have been because of Washington State’s idiosyncratic State Supreme Court, and the odd way it sometimes construes the Washington STATE constitution (although even this is far from clear). That is because Washington State constitutional law frequently defines discrimination utterly differently than federal law and the U.S. Supreme Court, in ways that flout well-established federal equal protection norms.

    For example, affirmative action is not even treated as a racial or gender classification under state law, although it is treated as such under federal law. Compare S.W. Wash. Ch., Nat. Elec. Contractors Ass’n v. Pierce County, 100 Wn.2d 109, 127, 667 P.2d 1092 (1983) (refusing to even treat an affirmative action gender preference as a gender classification, and applying mere rational basis review to uphold it, despite state court’s admission that federal courts would apply a tougher standard) with Michigan Road Builders v. Blanchard, 834 F.2d 583, 594-95 (6th Cir. 1987) (invalidating both race and gender-based affirmative action plans under heightened scrutiny), aff’d, 489 U.S. 1061 (1989). And racial preferences are permitted, and perhaps even required in rare cases, under the Washington State Constitition, even if they would be prohibited under the federal constitution. Compare Parents Involved v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660 (Wash. 2003) (race-based student assignment didn’t implicate state law banning racial preferences, and the state law might conceivably have been invalid under the state constitution if the state law had prohibited all race-based student assignments) with Crawford v. Huntington Beach Union High School Dist., 121 Cal.Rptr. 2d 96 (Cal. App. 2002) (finding that race-based student assignment did violate an identically worded California ban on preferences) and Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (banning racial preferences did not violate federal constitution).

    But Washington state law can’t trump federal rights to be treated equally under Title VI and the Equal Protection Clause. See Garnett v. Renton School District, 987 F.2d 641, 646 (9th Cir. 1993)(right of religious group to equal treatment by school under federal Equal Access Act override discriminatory requirements of Washington State’s establishment clause; “state[s] cannot abridge rights granted by federal law. . .State law must therefore yield”).

    Thus, even if there were a possibility that the Seattle Schools might have been declared by a judge to be “segregated,” that still would not justify its using race-based student assignments.

    The Seattle Schools clearly are not segregated within the meaning of controlling U.S. Supreme Court precedents. It is true that in the 1970s, some justices on the U.S. Supreme Court erroneously argued that school districts should be held liable based on de facto segregation, or racial imbalance, alone, without any showing that the school district had caused that racial imbalance through its own intentional discrimination.

    Claims in the 1970s that the Seattle Schools were once segregated may have reflected that erroneous, but widely-shared, assumption.

    But the Supreme Court not only decisively rejected that assumption in succeeding years, but went further in cases such as Freeman v. Pitts (1992) and rejected the very idea that racial balancing was a goal that school districts should be judicially encouraged to seek. See Grutter v. Bollinger, 439 U.S. 306, 330 (2003) (“racial balancing” is “patently unconstitutional”), citing Freeman v. Pitts, 503 U.S. 467, 494 (1992) (“Racial balance is not to be achieved for its own sake”).

    Moreover, even if Seattle School District did somehow discriminate against minority students in the 1970s, that would be too long ago to support race-based student assignments today. See Brunet v. City of Columbus, 1 F.3d 390, 409 (6th Cir. 1993) (finding evidence of discrimination 14 years before enactment of affirmative action plan “too remote”); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987) (discrimination that occurred 17 years before was too remote to support race-conscious decisions), cert. denied, 486 U.S. 1036 (1988).

    Finally, as the Center for Individual Rights amicus brief in the Seattle case points out (pg. 7), in practice, the Seattle Schools’ race-based school assignment policy is itself segregative, since it increases the racial isolation of the smaller minority groups, like Hispanics and Native Americans, by excluding them from certain schools where they are already scarce.

    (The argument that the Seattle Schools’ use of race is dangerous to other minority groups, such as Asian Americans, is developed at greater length in the Asian American Legal Foundation’s (AALF) amicus brief in support of the parents challenging the Seattle School District’s use of race. AALF notes that it is Chinese Americans who have been disproportionately excluded from the best San Francisco schools as a result of San Francisco’s “diversity”-based racial-balancing student assignment policies).

  24. Jack Sprat says:

    Did Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989), deal with affirmative action in public schools?

  25. Hans Bader is Lying? says:

    Hans Bader: Racial balance is not to be achieved for its own sake.

    Isn’t the issue here that the local community, through its school board, after review sociological studies and conferring with education experts, decided that it wants to promote certain kinds of pedagogical benefits derived from diversity? I don’t think it is accurate to claim that any of the parents or education officials on the school board in this case want racial balancing for the sake of racial balancing.

  26. Jacques McKenzie says:

    Hans Bader: In the Seattle case, the parents’ brief expressly raises Title VI, so it clearly is at issue. But in Meredith, the parents’ brief doesn’t expressly mention Title VI, at least not the opening merits brief.

    Well, then, it seems the Title VI question is still an open one. Gratz very well could be struck down and the proper interpretation of the Thirteenth and Fourteenth Amendments — excluding your made-up “color-blindness clause” restored. I presume you are elated at the prospect that slavery would be again abolished in this country.

  27. Jacques McKenzie says:

    Hmm. The mere fact that affirmative action programs just reflect the interests of whatever racial group that has the most power in a locality (e.g., this program may harm Asians) is reason for it to be a matter of local and state politics, like ordinary economic decisions. That would fit with the original understanding of section 2 of the Thirteenth Amendment and the system of cooperative federalism that informs most state agency action in implementing federal law.

    I find it hilarious that Hans Bader is opposed to states’ rights.

  28. Joe says:

    “evidence is uncontroverted that Seattle public schools would be fully integrated without assigning students by race”

    I’m under the impression that this is the point of the debate — this policy is necessary for true integration, which Brown’s progeny honored as its ultimate goal. It is a lot easier just to say there is no debate, I guess.

    It is arguable just what 14A equal protection clause demands or how to fully secure its ends. It surely doesn’t say “colorblindness” though this can be drawn from it. [BTW, Harlan didn't even oppose public school segregation.]

    As to the 1A, it does apply to Congress. Its reach applies to the states via the 14a. The 13A is broader — it even applies to private persons, who also must not own slaves. The need for this sort of program to abolish “badges of slavery” and so forth also is a grand debate.

    And, obviously a rather personal one from some of the replies here.

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