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.

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

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.

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.

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).

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.

Is Title VI at-issue in the Meredith case?

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.