Race, Schools, and the Liberal Justices
Yesterday, the Supreme Court heard oral argument for a case involving public school districts' use of race in assigning kids to particular schools within districts.
(The difference from the affirmative-action programs at the University of Michigan, if there is a constitutional difference, is that in those cases, race was displacing merit as a criteria for admission. In the program at issue in yesterday's case, merit is not a criteria for admission; hence, race displaces only parental choice, if anything, as a criteria for school assignment.)
A lot of the questions from Justices Souter, Breyer, Ginsburg, Stevens, and Kennedy focused on whether there was any reason to suspect invidious motives when a democratically elected school board decided to use race to get the racial composition in each public school in a district to mirror the racial composition of the district's general population.
The lawyers for the school districts were abysmal, so they had no answers, but Justice Scalia piped up with a hypothetical answer: If the population of both the school district and the school board were mostly black, but the best schools in the district were predominantly white, the school board might couch its selfish desire to get a slice of the best schools in the guise of "promoting racial balance" in schools. But although the lawyers didn't have a ready answer about the racial composition of the school board, this hypothetical doesn't seem to apply to the Seattle and Kentucky school districts.
Scalia and the conservatives think that any race-based classification at all is problematic, and they will vote to strike down the programs at issue. The liberals think benign uses of race can survive strict scrutiny. They believe achieving racially balanced schools is a compelling state interest. The dispositive issue, I think, will be whether the programs are narrowly tailored to that end.
Interestingly, in one of the programs at issue in the case, two predominantly black schools were excluded from the racial composition requirements. I think that fact might be important in the "narrow tailoring" inquiry. If it is, the ironic result will be that if the school districts had used race more aggressively (by making the requirement apply to all schools in the district), the program would have satisfied the "narrow tailoring" inquiry, while a less aggressive use of race fails the test.
Stay tuned . . .
(The difference from the affirmative-action programs at the University of Michigan, if there is a constitutional difference, is that in those cases, race was displacing merit as a criteria for admission. In the program at issue in yesterday's case, merit is not a criteria for admission; hence, race displaces only parental choice, if anything, as a criteria for school assignment.)
A lot of the questions from Justices Souter, Breyer, Ginsburg, Stevens, and Kennedy focused on whether there was any reason to suspect invidious motives when a democratically elected school board decided to use race to get the racial composition in each public school in a district to mirror the racial composition of the district's general population.
The lawyers for the school districts were abysmal, so they had no answers, but Justice Scalia piped up with a hypothetical answer: If the population of both the school district and the school board were mostly black, but the best schools in the district were predominantly white, the school board might couch its selfish desire to get a slice of the best schools in the guise of "promoting racial balance" in schools. But although the lawyers didn't have a ready answer about the racial composition of the school board, this hypothetical doesn't seem to apply to the Seattle and Kentucky school districts.
Scalia and the conservatives think that any race-based classification at all is problematic, and they will vote to strike down the programs at issue. The liberals think benign uses of race can survive strict scrutiny. They believe achieving racially balanced schools is a compelling state interest. The dispositive issue, I think, will be whether the programs are narrowly tailored to that end.
Interestingly, in one of the programs at issue in the case, two predominantly black schools were excluded from the racial composition requirements. I think that fact might be important in the "narrow tailoring" inquiry. If it is, the ironic result will be that if the school districts had used race more aggressively (by making the requirement apply to all schools in the district), the program would have satisfied the "narrow tailoring" inquiry, while a less aggressive use of race fails the test.
Stay tuned . . .
posted by Garrett at 9:19 AM
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