A Good -- If Mixed Bag ...
... with a puzzle inside.


For those of us who don’t like racial preferences and classifications, the news last week from the Supreme Court in the two cases involving race-based student assignments was very good, with a little bad, and a puzzling question.

First, the good.

1. The best thing was the bottom line: Five justices voted that the race-based student assignment plans being used by school districts in Seattle and Louisville were unconstitutional. That this is cause for celebration needs no further proof than the hysteria in the liberal establishment, media, and educators alike, which was palpable. “Resegregation Now,” read the lead New York Times editorial; “A Blow to Brown: The Supreme Court enables the segregation of schools by race,” seconded the Washington Post. Gee, and I thought the Court had struck down assigning students by race, just like in Brown.

2. The practical effect of this will be significant, and is already visible. School-board members across the country will pick up the paper and read what the Court did, and they will conclude that using skin color to determine school assignments is a bad idea.

One would hope that they already had some moral misgivings about such discrimination.

One would also think that, morality aside, they must suspect that most parents don’t like it when they are told that their children’s choice of schools hinges on what color they are. Recall the overwhelming approval that ballot initiatives banning state-sponsored discrimination and preference have garnered in California, Washington, and, most recently, Michigan.

On top of all this, school-board members now know that, when their counterparts in Seattle and Louisville used race-based student assignments, they enmeshed their respective school districts in years of litigation, ultimately losing and ultimately requiring them to pay, not just their own lawyers, but the opposing side’s lawyers as well.

“No thanks,” other school boards will say. The Seattle and Louisville plans were not atypical and were not particularly sloppy or badly thought out, and they were skillfully defended. But they lost. School boards are not like the University of Michigan, with millions in endowment to bankroll politically correct massive resistance.

According to one paper, conservative legal groups, like Pacific Legal Foundation, have identified several other districts — even including one that had earlier withstood a legal attack, namely Lynn, Massachusetts — whose policies now seem ripe for challenge. Another paper reports that the president of San Francisco’s school board, once a leading advocate for using a student’s race to make school assignments, says he is now likely to abandon that stand in light of the Court’s decision.

3. It’s also good news that the two newest members of the Court, Chief Justice Roberts and Associate Justice Alito, joined with conservative stalwarts Scalia and Thomas in the principal opinion.

4. That opinion made clear its skepticism for all racial and ethnic classifications and preferences, and made clear that it would require much more than a desire for “diversity” — that is, mere racial balance — to justify them. To satisfy those joining this opinion, there will have to be very tight fit between a clearly nonracial end and any racial means.

5. In particular, the opinion made clear that the Court’s earlier, University of Michigan decision in Grutter v. Bollinger (2003) — the persuasiveness of which, by the way, at one point Chief Justice Roberts seems to have been rather grudging toward — would be “take[n] … at its word.” Universities using race in admissions had better be able to show that what they have is “`not an interest in simple ethnic diversity’ but rather a ‘far broader array of qualifications and characteristics’ in which race was but a single element.’” Hear that, college administrators? The Roberts opinion (in a part joined by Justice Kennedy) also made clear that it takes seriously the requirement in Grutter that race be used only as a last resort, after other, nonracial means have been seriously considered — something else that ought to give college administrators pause.

6. Finally, the Roberts opinion was right not only in its skepticism about the purported benefits of weighing race, but also in emphasizing that “the costs are undeniable.” Too often, debates about affirmative action begin and end with the question of asserted benefits; it is also critical to go on and discuss that, whatever the benefits, they must be weighed against the divisiveness and unfairness of racial discrimination.

I especially liked this line, which underscores the inherent costs of such weighing: “To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end.”

To be sure, it was not perfect day.

1. The stridency and extremism of the dissent, and the fact that four justices joined it, are sobering. We are one justice away from a Supreme Court that sees racial discrimination as no big deal so long as it is done for politically correct ends. Something to keep in mind in 2008.

2. Chief Justice Roberts’s opinion did not quite close the door on some future school board trying to justify racial balancing by parading a social scientist or two who purport to show that such balancing “has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits.” Granted, the opinion did reject the school boards’ arguments in this case — on the grounds that, even if those results were obtained, the use of race was not narrowly tailored to them — but it would have been nice to have put an end to the notion that murky social science can justify clear racial favoritism.

3. And then, of course, there is the fact that Justice Kennedy did not join all of Chief Justice Roberts’s opinion.

Which brings us to the puzzle: Why didn’t he, and what exactly is it that Justice Kennedy would let a school board do that the other four conservatives would not?

It’s a little messy and complicated, but I think it boils down to this: Justice Kennedy wanted to make clear that, so long as they do not classify individual students by race, it is permissible for school systems to strive to end racial isolation of schools and/or promote their diversity. Thus, for instance, Justice Kennedy would allow school systems to locate individual schools with the idea of promoting racial diversity in them. (This question, by the way, is an admittedly tricky one, at least under the Court’s precedents, and divided the United States from the Seattle plaintiffs.) It’s rather odd and unfortunate that a justice would refuse to join a plurality opinion to make it a majority just because it didn’t include the dicta — that is, a declaration extraneous to the case before the Court — that he would like. But that’s what happened.

It’s not clear that this difference between Kennedy and the plurality will have much real-world effect. Things like school-site selection are, one suspects, hopelessly political anyhow, and having racial makeup in the back of one’s mind with them is in all events much less offensive than classifying individual students by race. Racial essentialism — the idea that your race tells us something fundamental about who you are and that the racial makeup of a school is so intrisically important that it determines who can go to it and who can’t — is now forbidden.

All in all, then, a very good day.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined an amicus brief filed in each of the two school cases decided by the Supreme Court.


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