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Race-Based Review
Compelling issues before the Court.


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On December 4 the Supreme Court will hear oral arguments in two cases — one from Louisville and one from Seattle — that challenge the constitutionality of race-based student assignments in K-12 public schools. Since it is uncontested that the two school systems are engaging in racial discrimination, the legal issue is whether the use of race is “narrowly tailored” to a “compelling” interest. The Court should rule that there is no such compelling justification for the school systems’ racial balancing, for three reasons.

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First, while the school boards assert that racially balanced student bodies yield educational and other societal benefits, the social-science data on which they rely are controversial and disputed. If the benefits are not certain, but only possible, then their value must be accordingly discounted.

If the social-science evidence put forward here is accepted as sufficient to establish a compelling interest, then rest assured it will be put forward to justify racial balancing in many other contexts (employment, housing, the makeup of various public boards, and jury selection, to name just a few). There are few government functions that cannot be described as rooted in some interest that seems “compelling,” and it will always be possible to find some social scientist who supports the notion that the consideration of race will improve that function. The State Board of Optometry (what is more precious than eyesight?) can insist on racially balanced appointments (can it be doubted that some survey will show that racial balance helps ensure greater sensitivity to the medical needs of this or that community?).

Acceptance of this controverted social-science evidence would also require the Court to revisit many of its earlier decisions. For instance, there is little doubt that social-science evidence could be adduced that a child is better off if the adoptive parents match his or her race. Likewise, there is social science that supports racial discrimination in teacher hiring because of the “role models” provided by teachers of this or that skin color. Indeed, there is — and was — social-science evidence that segregated settings provide educational benefits. But the Supreme Court has ruled against racial discrimination in all three contexts. As these examples also show, social-science data can be used to justify discrimination against individual members of groups that have already suffered historically from discrimination (as it already is in higher education against Asians and women).

Second, at best the benefits asserted are only marginal. That is to say, it is not — and could not be credibly be — asserted that effective education of K-12 children is impossible without racial classifications and racial balancing. The overwhelming majority of school districts do not (and most, for local demographic reasons, could not) use race-based assignments to ensure that every classroom “looks like America,” and yet they are able to educate children well. Rather, the assertion can only be that education is marginally improved by some uncertain and unknowable degree as a result of these classifications and preferences. This is not like remedying clear-cut past discrimination or preventing a second prison race riot, where the justices have been willing to allow the use of racial classifications. Furthermore, the marginal improvement will take place only in one part of the school’s educational mission. Most of what is taught and learned will not be affected at all by the skin color of student A that student B is sitting next to.

Putting together the first and second points: Education may be a compelling interest, but a one in three chance of achieving at best a small improvement in one part of the school’s educational mission is not.

Third, the inherent costs in classifying children by their skin color and treating them differently on that account are overwhelming, and cannot be eliminated by any amount of narrow tailoring. It is not the case that the costs of all kinds of racial discrimination are the same. And the costs of telling schoolchildren that they will or won’t be allowed to attend the school they like, depending on their skin color, are high indeed.

For an educational interest to be sufficiently compelling to justify racial discrimination, it is logical to require that the purported educational benefits significantly outweigh the various costs to the school system and to the wider society. The value of anything must consider its liabilities.

And the liabilities attendant to the use of racial and ethnic preferences here are substantial: They are personally unfair; they set a disturbing legal, political, and moral precedent in favor of allowing government discrimination; they create resentment; they teach that racial identity is very important and tells us something very significant about a person; they encourage the embrace and exaltation of such a racial identity, as well as a victim mindset; they get government actors involved in unsavory activities like deciding which racial and ethnic groups should be “counted” and how, and how one determines authentic group membership (note that, in these cases, Seattle decided that the two relevant groups were “white” and “nonwhite,” while Louisville decided that the two groups were “black” and “nonblack,” so Asians, Hispanics, Native Americans, Arab Americans, etc. were treated one way in one district and another way in the other); and, of course, if race is being used to determine school assignments, then other, neutral, fairer factors are not being weighed, or are being weighed less. All of these are significant costs.

In particular, the notion that the way to teach students that race is an irrelevant characteristic and that racial essentialism is a bad thing is by the government assigning students on the basis of race is ludicrous. The lesson that we ought to be judged as individuals, not according to skin color, is an important one, but it can be taught well — better, in fact — without hypocritically sorting students according to skin color in order to achieve some particular degree of “balance.” This lesson of treating all races with respect is, after all, not complicated and permeates our textbooks and popular culture; we have a national holiday dedicated to a man whose life was devoted to that proposition; our Constitution and federal and state laws reflect it. The lesson can be learned by students in overwhelmingly white schools in Idaho and overwhelmingly black schools in the District of Columbia, and there is no reason to think that it cannot be learned by students in Seattle and Louisville schools that are X percent “nonwhite” or Y percent “nonblack,” respectively.

For a nonremedial interest to be compelling, in sum, it must be aimed at a social emergency — preventing imminent threat to life or limb — or there must be uncontroverted and essentially incontrovertible evidence that the use of racial classifications and discrimination will provide enormous social benefits (that would otherwise be irretrievably lost) at little or no cost to individuals or society. The interests asserted here come nowhere close to passing this test.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined the amicus briefs filed by the Pacific Legal Foundation in the Seattle and Louisville cases.



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