Briefs were filed this week in the Supreme Court cases of Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education, both of which concern the use of race by school districts to assign students to limited slots in public schools. The cases present social engineers the opportunity to extend the diversity rationale articulated in the 2003 University of Michigan case Grutter v. Bollinger to K-12 classrooms and by extrapolation to contexts beyond education.
The circuit courts in each of the cases relied upon Grutter
to uphold the constitutionality of race-based assignments. While there are a number of factual differences between the two cases, both Seattle
involve attempts by the respective school districts to achieve racial balance by assigning some students to “open choice” schools on the basis of race. Because the Ninth Circuit’s opinion in Seattle
contains more factual detail, I’m going to focus here on the Seattle case.
The law holds that racial classifications created by the state are inherently suspect. Therefore, such classifications will be struck down unless they pass the two-prong strict-scrutiny standard: (1) the classification must serve a compelling governmental interest and (2) be narrowly tailored to serve that interest. I’ve written before about how the Seattle race-based assignment system likely will be struck down by the Supreme Court for failing to serve a compelling governmental interest. The system also will be struck down because it fails the narrow tailoring prong.
In Grutter, the Supreme Court found the University of Michigan Law School’s affirmative-action policy to be narrowly tailored because race was only one factor among many ( including employment history, geographic origin, foreign-language proficiency, SAT scores, GPA, extracurricular activities, etc.) considered in the admissions process. Race (purportedly) was not the sole or dominant factor in the admissions equation. Rather, it was considered in a flexible, individualized, non-mechanical manner.
In Grutter’s companion case, Gratz v. Bollinger, the Supreme Court struck down Michigan’s affirmative-action policy for undergrad admissions. That policy automatically awarded minority applicants 20 points in the admissions process — making race the dominant factor in determining whether the student was admitted. The Court held that the rigid, mechanical, and oppressive application of race wasn’t narrowly tailored enough to pass strict scrutiny.
Seattle’s racial-assignment policy is even more broadly designed than that in Gratz. The purpose of Seattle’s plan is to ensure that no high school is racially unbalanced. (“Racially unbalanced” means that a school’s racial composition differs by more than 15 percent from the racial composition of the district as a whole). Race is the only factor considered if there are too many or too few nonwhites — Seattle’s policy recognizes only two racial categories: whites and everybody else. The policy doesn’t distinguish between blacks, Asians, Hispanics, and Native Americans.
The fact that race (or more precisely, Seattle’s peculiar definition thereof) is the sole factor in determining assignments to racially imbalanced schools is fatal to a claim that the policy is narrowly tailored. Seattle is simply engaging in racial balancing prohibited by the Supreme Court.
Keep in mind that the University of Michigan found that the benefits of diversity materialized when the minority student population reached approximately 12 percent of total student enrollment. By that measure, Seattle’s schools already are remarkably diverse — probably the envy of the diversity officers of every other major public-school system in the country. Seven of Seattle’s ten public schools have no racial majority. Even the remaining three are pictures of diversity: Ballard High is 62.5-percent white,14.7-percent Asian, 9.6-percent Latino, 8.9-percent black, and 4.3-percent Native American; Nathan Hale is 60.8-percent white, 17.4-percent Asian, 12.1-percent black, 6.4-percent Latino, and 3.3-percent Native American; Rainier Beach is 52-percent black, 30-percent Asian, 8-percent white, 8-percent Latino, and 2-percent Native American.
These figures suggest a social engineer’s utopia. They demonstrate far more racial diversity than was the goal in Michigan, yet Seattle still feels compelled to assign on the basis of race. The net effect of Seattle’s racial-assignment policy is simply to shuffle handfuls of minority students among a few schools — a dozen additional Latinos to Ballard, perhaps two dozen blacks to Nathan Hale, a score of Asians to Rainier Beach, etc.
Seattle’s obsession with adjusting the racial composition of schools that are diverse already fails the tests set forth in Grutter and Gratz. Indeed, it would be difficult to craft a racial-assignment policy more incongruent with the narrow tailoring requirement of strict scrutiny.
– Peter Kirsanow is a member of the U.S. Commission on Civil Rights. He also is a member of the National Labor Relations Board. These comments do not necessarily reflect the positions of either organization.