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The Return of Equality?
The Supreme Court will consider affirmative action again.


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On Monday, the Supreme Court granted review in two cases that present the issue of whether, in the name of “diversity,” public-school systems can discriminate on the basis of race in assigning students to schools at the K-12 level: Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education.

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This is a big deal. Among other things, we will see what kind of approach Chief Justice Roberts and Associate Justice Alito will take in racial-preference cases.

In the Seattle case, the school district uses race as the number-two tiebreaker (first is already-enrolled siblings) in determining admission to oversubscribed high schools. That is, if you want to go to a school that is already considered disproportionately white, you can get in only if you are non-white; and if you want to go to a school that is already disproportionately non-white, you can get in only if you are white.

The other case is from Louisville. Here, too, in order to ensure that each school achieves an appropriate racial mix, the trial court found that “a student’s race, whether Black or White, could determine whether that student receives his or her, first, second, third or fourth choice of school.”

Should conservatives be happy or worried that the Court granted review?  Both.

The old saw is that the Court does not grant review in cases it plans to affirm, and the lower courts in these two cases upheld the school districts’ racial discrimination. The fact that a third federal court of appeals, in a case involving yet another race-based assignment plan–this one in Lynn, Massachusetts–ruled the same way gives added hope that the Court is not happy with the trend below and wants to stop it. Certainly, it would have been disappointing if the Court had denied review in all these cases and allowed the discrimination to continue.

That said, the fact that review was granted now means that it is possible that we could get a bad Supreme Court ruling. Is that possible? Certainly.

The proponents of race-based assignments will argue that, just as the Court recognized in its 2003 University of Michigan rulings that there are “educational benefits” from “diversity” at the university level, so it should recognize that there are similar benefits at the K-12 level. Students are students and schools are schools, right? Well, in fact, there are some clear distinctions between the university and K-12 contexts.

First, the Court has always emphasized the deference it would pay to universities, because of First Amendment principles of academic freedom. In its University of Michigan rulings, it said that “universities occupy a special niche in our constitutional tradition.” It has paid no such deference, and rightly so, to school boards that want to engage in racial discrimination.

Second, the “educational benefits” of diversity in universities stem from the “robust exchange of ideas” that students from varying backgrounds and perspectives can then share. One can question whether a “robust exchange of ideas” is to the same degree beneficial–indeed, whether it is beneficial at all–in a kindergarten class. Even Harvard University’s left-wing Civil Rights Project acknowledged this point in its analysis of the University of Michigan rulings. Education is typically more structured, more top-down, in elementary and secondary school. As dubious as the social-science evidence for “educational benefits” was in the University of Michigan cases, it is even thinner here.

Third, the Court stressed in the University of Michigan cases that students were to be given “individualized consideration”–not treated mechanically just because of skin color, but evaluated holistically, with race as just one factor among many. Accordingly, it struck down the undergraduate admissions “point” system, and upheld the supposedly more holistic law-school system. But Seattle and Louisville use race even more mechanically than did the UM undergraduate system. It also seems unlikely that there are no race-neutral alternatives to the preferential K-12 admission systems–another element of the “narrow tailoring” that the Court insisted on in the UM cases.

Of course, conservatives thought they would win the University of Michigan cases, too, and we didn’t. Here are three lessons for us to keep in mind over the next few months.

1. Lining up supporting friend-of-the-court briefs is important. The single most important amicus brief will be the one filed by the U.S. Solicitor General–assuming he files one. The Bush administration filed a couple of lackluster briefs in the University of Michigan cases; it must do better this time, and the Republican base must make that clear. You can be certain that the Left will try to get various educator groups–teacher unions and the like–to argue in behalf of race-based assignments, and probably some businesses, too (just as they did in the UM litigation); it would be desirable to marshal some amicus briefs by conservative educators and businesses.

2. Counter the social-science claims of “diversity” benefits. Social-science data do not prove that racial balance equals better education–in particular, for blacks and Latinos. Abigail and Stephan Thernstrom marshaled much of the evidence in their excellent 2003 book, No Excuses: Closing the Racial Gap in Learning. The Seattle and Louisville school districts will make claims to the contrary, however, and their claims cannot be left unanswered. (It may also be worth reminding the Court that, once upon a time, school districts claimed that social science proved segregation to be essential to a sound education.)

3. Demonstrate that discrimination like Seattle’s and Louisville’s is, if not aberrant, at least not the rule. Educators at the K-12 level include, I have no doubt, plenty of politically correct bureaucrats. On the other hand, school systems are more democratically accountable than university admissions offices, and, since most parents don’t like their children to be told where they can and cannot go based on skin color, I also would suppose that there are many, many school districts that reject this nonsense. If they cannot be persuaded to file amicus briefs, the existence of these schools should at least be brought to the Court’s attention in someone else’s brief.

There is a majority of justices who are inclined to do the right thing here. They would like to distinguish and thus limit the University of Michigan decisions, and perhaps even begin to plant seeds of doubt about their continued viability. But because they are conservatives they will be worried if they are striking down a policy that everyone else–education officials at the federal, state, and local levels; social science and education experts; and parents–apparently likes. So the case has to be made to these conservatives that, if they do the right thing, they will not be all alone.

–Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined amicus briefs filed by the Pacific Legal Foundation that urged the Supreme Court to grant review in the Seattle and Louisville cases.



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