Justices Limit Use of Race in Placement of Students

Justices Limit the Use of Race in School Plans for Integrati
Linda Greenhouse is the most respected reporter of Supreme Court Decisions. ---BBB

June 29, 2007
Justices Limit the Use of Race in School Plans for Integration
By LINDA GREENHOUSE
New York Times

With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared Thursday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student's race.

Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a "tiebreaker" for admission to particular schools.

Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Chief Justice Roberts said such programs were "directed only to racial balance, pure and simple," a goal he said was forbidden by the Constitution's guarantee of equal protection.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he said. His side of the debate, the chief justice said, was "more faithful to the heritage of Brown," the landmark 1954 decision that declared school segregation unconstitutional. "When it comes to using race to assign children to schools, history will be heard," he said.

The decision came on the final day of the court's 2006-7 term, which showed an energized conservative majority in control across many areas of the court's jurisprudence.

Chief Justice Roberts's control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Justice Kennedy agreed that the two programs were unconstitutional. But he was highly critical of what he described as the chief justice's "all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account."

In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, "avoiding racial isolation" and addressing "the problem of de facto resegregation in schooling" were "compelling interests" that a school district could constitutionally pursue as long as it did so through programs that were sufficiently "narrowly tailored."

The four justices were "too dismissive" of the validity of these goals, Justice Kennedy said, adding that it was "profoundly mistaken" to read the Constitution as requiring "that state and local school authorities must accept the status quo of racial isolation in schools."

As a matter of constitutional doctrine and practical impact, Justice Kennedy's opinion thus placed a significant limitation on the full reach of the other four justices' embrace of a "colorblind Constitution" under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.

How important a limitation Justice Kennedy's opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.

Among the measures that Justice Kennedy said would be acceptable were the drawing of school attendance zones, "strategic site selection of new schools," and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Justice Kennedy said, because in avoiding the labeling and sorting of individual children by race they would satisfy the "narrow tailoring" required to meet the equal protection demands of the 14th Amendment.

Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Justice Kennedy's proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.

Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. His most pointed words, in fact, appeared nowhere in his 77-page opinion.

"It is not often in the law that so few have so quickly changed so much," Justice Breyer said.

In his written opinion, Justice Breyer said the decision was a "radical" step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. Predicting that the ruling would "substitute for present calm a disruptive round of race-related litigation," he said, "This is a decision that the court and the nation will come to regret."

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed Justice Breyer's opinion. Justice Stevens wrote a dissenting opinion of his own, as pointed as it was brief.

He said the chief justice's invocation of Brown v. Board of Education was "a cruel irony" when the opinion in fact "rewrites the history of one of this court's most important decisions" by ignoring the context in which it was issued and the Supreme Court's subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.

"It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today's decision," Justice Stevens said. He did not mention, nor did he need to, that one of the justices then was William H. Rehnquist, later the chief justice, for whom Chief Justice Roberts once worked as a law clerk.

Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.

"If our history has taught us anything," Justice Thomas said, "it has taught us to beware of elites bearing racial theories." He added in a footnote, "Justice Breyer's good intentions, which I do not doubt, have the shelf life of Justice Breyer's tenure."

The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle programs filed their Supreme Court appeals from the lower court decisions that had upheld the programs.

The Louisville case was Meredith v. Jefferson County Board of Education, No. 05-915, filed by the mother of a student who was denied a transfer to his chosen kindergarten class because the school he wanted to leave needed to keep its white students to stay within the program's racial guidelines.

The Seattle case, Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, was filed by a group of parents who had formed a nonprofit corporation to fight the city's high school assignment plan.

Because a single Supreme Court opinion resolved both cases, the decision carries only the name of the Seattle case, which had the lower docket number.

The appeals provoked a long internal struggle over how the court should respond. Months earlier, when Justice Sandra Day O'Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.

By the time the court ruled on Thursday, there was little suspense over what the outcome would be. Not only the act of accepting the appeals, but also the tenor of the argument on Dec. 4, gave clear indications that the justices were on course to strike down both plans.

The cases were by far the oldest on the docket by the time they were decided; the other decisions the court announced on Thursday were in cases that were argued in March and April. What consumed the court during the seven months the cases were under consideration, it appears likely, was an effort by each side to edge Justice Kennedy closer to its point of view.

While it is hardly uncommon to find Justice Kennedy in the middle of the court, his position there this time carried a special resonance. He holds the seat once occupied by Justice Lewis F. Powell Jr. who, 29 years ago to the day, announced his separate opinion in the Bakke case. That solitary opinion, rejecting quotas but accepting diversity as a rationale for affirmative action in university admissions, defined the law for the next 25 years, until the decision was refined and to some degree strengthened in the University of Michigan Law School decision.

Justice Kennedy was a dissenter from that 2003 decision. But, surprisingly, he cited it on Thursday, invoking it to rebut the argument that the Constitution must be always be, regardless of context or circumstance, colorblind.

Thanks for starting the thread. I'll be back.

Here's your question and my answer, Thomas. Regards.



This short quote from today's NYTimes says it well enough:

Now, it appears the Roberts court has said "Never mind. It's none of our business. Preparing students to live in a pluralistic society. Piffle. We don't live in a pluralistic society." And they, the five conservative justices voting in favor of this ruling don't, but we, the people, do.

And let's not forget that unlaying any compelling government interest is the compelling interest of the People. The American Government is not separate from the people, it is of the people.

It is in the best interests of all of the people, the government, that the education of our citizens be provided in such manner that every citizen can benefit without barriers. Achieving racial diversity, avoiding racial isolation and addressing the problem of de facto resegregation in schooling are all compelling interests that any school district ought to pursue as long as it does so through programs that are sufficiently "narrowly tailored." The tailoring in this case, at least for Roberts et al, was not the issue. They decided, despite decades of precedent, that race cannot be a factor in pursuing those interests.

Joe(Kind of like writing the rules for baseball without mentioning the ball.)Nation[/quote]

Joe,


Although Justice Kennedy concurred with the majority opinion, he did consider tailoring to be important (in his separate opinion):

Thanks, wj, from what I've read about Justice K's concurrence there was some reasoned reasoning there. .

Joe(more later)Nation

Why should it be left to school districts to decide whether or not racial diversity is being achieved or racial isolation is being eliminated? And what evidence is there that busing kids to other schools/districts is actually doing either?

Re-segregation isn't occuring because black kids are being sent to "black schools" and white kids are being sent to "white schools". It's happening because blacks seem to prefer to live amongst other blacks, whites seem to prefer to live amongst other whites, etc... If there is a compelling state interest in achieving racial diversity, avoiding racial isolation and addressing de-facto segregration then why not empower the state to order urban blacks to live in white suburbs and suburban whites to live in urban black neighborhoods? Why should social engineering be left to school systems who only exert control over small portion of the population - a portion that, by and large, isn't able to make any of the actual decisions regarding any of the issues that you appear to think need to be addressed?

While I'm not entirely in agreement with the decision and prefer Kennedy's view, the schools (at least around here) haven't been doing ANY tailoring at all. There are several school districts in greater Boston that have been implementing race-based "shuffling" of kids when there has been no demonstrated need at all.

I would suspect that this sort of thing is the product of bureaucracy. People get the job of insuring "racial diversity" in a school district, so they devise things like a busing program and magnet schools. Although the demographic of a neighborhood may change and the need be obviated, there will still be people with a job who want to protect it--so they keep doing what they have been doing, whether or not it is any longer needed.

That may be true Set. How much so - I don't know.

Boston had forced (court mandated) busing for decades and a lot of other school districts appear to have decided on tehir own that "Hey, if it's good for Boston then it must be good for us too!" and they implemented plans on their own.

On some other threads people have been quoting Roberts "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." as if it made sense.

It seems to me to more like bumpersticker opinion writing (Holy Cow, have we come to that??) and is a shame to see such touted as anything but unworthy to be included in a decision from the highest Court in the land.

Here's a bit from a blog called Balkinization, a page I find very interesting from time to time. LINK

Saturday, June 30, 2007
Confusion about "discrimination"


Guest Blogger


Deborah Hellman
University of Maryland School of Law


In his plurality opinion in Parents Involved, Justice Roberts closes his opinion with the seeming truism that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The problem with this claim is that it profits from an important conflation between two different senses of the term "discrimination." Sometimes to discriminate is simply to draw distinctions among people or things. For example, insurers routinely discriminate between potential insurance customers on the basis of the risk each poses of making a claim against the insurer during the policy period. Other times, we use the term "discrimination" in a critical rather than a descriptive way. For example, laws forbidding blacks from sitting in the front of public buses discriminate (read wrongly discriminate) against African-Americans. When we pay attention to the two senses of the word "discrimination," we see that Justice Roberts' claim is far from obvious. The way to stop discrimination (i.e. wrongful discrimination) on the basis of race is to stop discriminating (i.e. drawing distinctions) on the basis of race. Is he right?



In order to answer this question we would need to know whether he means this to be an empirical or instead a moral claim. The most natural reading of the sentence is the former. As an empirical claim it would be read as follows: The way to bring about less wrongful discrimination on the basis of race is to stop drawing distinctions on the basis of race. Whether or not this is true would require social science evidence and would likely to be difficult to assess - as life does not provide controlled experimental conditions. It is unlikely however that Justice Roberts intends an empirical claim here. Moreover and more importantly, such an empirical claim hardly seems relevant to the constitutional question at issue. Whether or not drawing distinctions on the basis of race is an effective means of ending wrongful race discrimination in our society is the sort of question that is relevant to the political decision-makers in our country - school boards in this instance.



Not withstanding its infelicity, the more sensible reading of Justice Roberts' claim is as a moral claim: the way to stop wrongful discrimination on the basis of race is to stop drawing distinctions on the basis of race. As such, this claim rests on the dubious proposition that any instance of drawing distinctions on the basis of race is wrongful. Given that the claim occurs in a Supreme Court opinion offering constitutional interpretation, we should charitably refine it as follows: it is almost always unconstitutional (thus the insistence on strict scrutiny) for the state to draw distinctions on the basis of race. But is this even remotely plausible? Think of the census. Is the census's use of racial categories unconstitutional unless it meets the requirements of strict scrutiny? What about when the FDA approves a new drug for use in a specific racial group?



What is missing from Justice Roberts' analysis (and Equal Protection doctrine generally) is a theory of when drawing distinctions on the basis of race (or any other trait) constitutes wrongful discrimination. In my view, distinctions drawing is wrongful and unconstitutional when it is demeaning.

In this pair of cases, the plaintiff-students were denied admission to the schools of their choice because of the adverse effect on the racial balance of the schools. While such denials are disappointing to those students, and the students and their parents may suffer real harms (not being in the best program for his needs in the case of Meeks in Seattle and not being close to home in the case of McDonald in Louisville, for example), racial balancing policies do not express that some students are less morally worthy than others or that their concerns are less important. Rather a policy of racial balancing expresses that a racial mixed environment is educationally useful and an important public good. Whether or not that is so I couldn't say, but the policies surely do not distinguish among students in a way that denigrates the equal worth of any student.


Joe(what we have is a Chief Justice with no memory of what it was like before Brown vs. Education)Nation

Apparently Ms. Hellman is slightly confused.



When did "school boards" become "political decision-makers"?? I was under the siilly impression that they were there to make decisions regarding the administration of education systems.



What is dubious here is Ms. Hellman's thinking. Justice Roberts doesn't need to worry about whether or not the claim is "moral" or not. Nor does he need to concern himself with whether or not the claim is a "dubious proposition".



What is missing from Ms. Hellman's analysis is the LEGAL concern is that the Constitution prohibits ANY government entity from engaging in "wrongful" (which she conjures up as if there is a "rightful" discrimination alternative) discrimination on the basis of race. There is no wording in the Consitution that says "Thou shalt not discriminate on the basis of race unless you think it is a good thing." There is NO provision for limiting the Consitutional provisions against racial discrimination for when it is "demeaning".



Ah! So she creates her own "dubious proposition" and in doing so advocates for a moral judgement that just ignores the legal requirements - as long as no ones feelings get hurt. I see...

I agree with fishin's comments, and would only add that by Ms. Hellman's standard, Plessy v. Fergusson was correctly decided in 1896. Segregating whites and blacks into separate but equal train compartments wouldn't have been considered particularly demeaning for blacks at that time. No more demeaning, at least, than segregating smokers and nonsmokers into separate but equal train compartments is to smokers. Ms. Hellman's test is fuzzy and unworkable. I prefer Justice Harlan's dissent in Plessy:

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

I couldn't say it any better myself.

(Still reading the opinions. It's taking me longer than expected, but I prefer working from the real thing to working from summaries by commentators with an axe to grind.)

Ya see . . . that's just what's wrong with you Yer-a-peein' inty-leck-chewall types. You have to try to come up with a logical analysis of a problem based on "facts" and "evidence"--when ever-body knows emotive political appeals are the fastest, most effective way to appear to be doing something useful.

Money, Not Race, Fuels New Push to Buoy Schools
Always look for the incentive---it's almost always money. ---BBB

Some preliminary observations, based on a cursory reading of the opinions.

First of all, I haven't seen anyone post a link to the opinions. You can find them here.

Secondly, the majority decision is both less troubling and more troubling than some commentators have suggested. Less troubling because there is still a five-member majority in favor of using racial classifications in some contexts. Kennedy's concurrence makes it clear that he would be willing to allow governments to use racial classifications -- just not these governments in these cases. And the court did not totally abandon Grutter v. Bollinger, which is the court's 2003 decision which allowed the Univ. of Michigan law school to include race as one factor among many as a means of achieving a diverse student body.

On the other hand, the plurality opinion is more troubling because it held that a government cannot use race as a "tiebreaker." That may not have much effect on school admissions (in the wake of Gratz v. Bollinger, weighing race more heavily than other factors has been unconstitutional), but it may have some profound effects on affirmative action plans in employment, where race is routinely used as a tiebreaker where two or more applicants are equally qualified for the same job. It's unclear how the court's reasoning in the Parents Involved case would translate in the employment context, but it is not hard to imagine how the majority here would rule on the constitutionality of the same sort of "tiebreaker" in the private sphere.

But all of this might all be a distinction without a difference. In Grutter, the court said that a school can use race as one factor among many, while in Parents Involved the court said that a school cannot use race as a tiebreaker. Or, in other words, a school can evaluate on the basis of a variety of factors (say, ABCDE and R), and distinguish between students based on the sum total of their differences, whereas a school cannot distinguish between students who are equal on the basis of ABCD and E, and then break the tie based on R. That, to my mind, isn't much of a difference. All the latter school would need to do is to add R to the entire list of factors ABCD and E, rather than evaluating it separately as a final tiebreaker.

What this means is that Grutter may have survived relatively unscathed in the wake of Parents Involved, despite Roberts's obvious goal of distinguishing "liberal" precedents into irrelevance. Indeed, school districts that desire racially diverse student bodies may only need to tweak their student assignment policies slightly in order to avoid scrutiny under Parents Involved. Furthermore, the majority's unwillingness to jettison Grutter makes it more likely that a future court can turn the tables and distinguish Parents Involved into irrelevance.