Seattle Grace
A setback for racial bean counters.


Peter Kirsanow

With its decisions in Parents Involved In Community Schools v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education the Supreme Court Thursday rejected racial bean counting in K-12 school assignments. In doing so, the Court slowed the erosion of the strict-scrutiny standard of review for state- sponsored racial classifications and placed some guardrails around its 2003 affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger.

The decisions weren’t particularly surprising (50 years after Brown v. Board of Education grade schools still can’t deny admission on the basis of race!) Nonetheless, the decisions will frustrate the ambitions of racial preference proponents who, immediately after issuance of Grutter, began planning extensions of the case’s diversity rationale to environments beyond elite college campuses. Grade schools, the workplace and all manner of government programs and contracting seemed promising targets for utopian color coding. But while diversicrats may be disappointed by yesterday’s rulings, they’re unlikely to be deterred. The reason is that Justice Kennedy’s concurring opinion gives them a sliver of hope.

Both the Seattle and Meredith cases involved attempts by the respective school districts to achieve racial balance by assigning some students to “open choice” schools on the basis of race. Because Seattle provides a bit more detail, and to keep this as simple as possible, let’s concentrate on the Seattle facts.

First, keep in mind that racial classifications created by the state are considered 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 state interest and (2) must be narrowly tailored to serve that interest.

Strict scrutiny is perhaps the most difficult standard to meet in federal jurisprudence. In fact, prior to the University of Michigan affirmative-action cases cited above, only national security (including some elements of law enforcement) and the remediation of actual discrimination qualified as compelling state interests.

In Seattle, the Ninth Circuit held that Seattle public schools could use race to assign students because of the state’s compelling interest in (1) obtaining the educational and social benefits of racial diversity in secondary education and (2) avoiding racially concentrated or isolated schools resulting from Seattle’s “segregated” housing patterns.( The “segregation “ was not state-sponsored). The court reached its decision by relying on the Supreme Court’s analysis in Grutter and Gratz.

Seattle’s Open-Choice Plan
Approximately 70 percent of Seattle’s residents are white. The remainder, obviously are nonwhite, but the record doesn’t reveal what percentage are black, Hispanic, Asian, or Native American. The latter percentages are immaterial because the Seattle race-based assignment policy simply lumped all blacks, Hispanics, Asians and, Native Americans into the nonwhite category.

The Seattle School District (“district”) never segregated its schools on the basis of race (in Meredith, Jefferson County Kentucky did segregate but was adjudged as having achieved unitary status in 2000). But because members of a particular race or ethnic group tended to cluster in certain neighborhoods, Seattle’s ten public high schools reflected the racial concentrations of the surrounding neighborhoods.

The district attempted to “balance” the racial composition of its schools as early as the 1960s, when it implemented an exchange program. This was soon expanded into a “Voluntary Racial Transfer” program, the first of several failed attempts over the next 30 years to achieve the racial balance preferred by district administrators.