September
4, 2003, 11:00 a.m. You’re
Not at the University of Michigan Anymore
The
Supreme Court's decision is unlikely to apply to K-12.
number of legal activists and experts claimed in a recent issue of Education
Week that the Supreme Court's decision this June to allow the University
of Michigan law school's use of racial and ethnic preferences gives a
green light to K-12 plans designed to achieve greater racial and ethnic
"balance" in schools, even when unnecessary as part of a desegregation
plan. I disagree.
In order for a school
system's use of racial and ethnic classifications to be constitutional,
it has to be "narrowly tailored" to a "compelling interest,"
according to the Court. What is significant — and disappointing —
about the Michigan decision is that it says a desire for a predetermined
racial and ethnic mix (a.k.a. "diversity"), and the improved
educational outcomes that supposedly flow from it, qualify as a compelling
interest. Let's put that aside for a moment, however, and discuss why
— even if that part of the Court's holding applies to K-12 —
the narrow-tailoring requirement probably won't be met in the context
of elementary and secondary schools.
First and foremost, the Court made clear that students must be given "individualized
consideration" in deciding their admission. It is very unlikely that
most K-12 public schools — aside from, perhaps, a few honors high
schools — are going to evaluate an "application" from each
student in the way that the Court said law schools must, with race or
ethnicity given only a minor role in determining the contribution the
student will make to a "diverse" student body. Don't forget
that the same day the Court upheld the University of Michigan law school's
use of admission preferences, it struck down the university's undergraduate-admissions
system, because it mechanically awarded 20 points (out of 150) on the
basis of race or ethnicity.
Indeed, it is much
more likely that the K-12 process will actually involve quotas, which
the Court expressly disallowed. Nor, conversely, are K-12 public schools
likely to weigh the nonracial contributions to "diversity" offered
by non-minority students (another element of the Court's analysis). In
addition, there are generally going to be race-neutral alternatives that
a school system could use to achieve diversity, and one doubts that most
plans considered by public schools would have built into them an end-date
and provisions for periodic reviews — all of which, again, are required
by the Court for the plan to be narrowly tailored.
It is significant
that the three public-school systems whose use of race-conscious admissions
programs were challenged in recent years and reached the federal court
of appeals level — in Montgomery County, Maryland; Arlington, Virginia;
and Boston, Massachusetts — were all declared unconstitutional because
they were not narrowly tailored. That is to say, they would all be vulnerable
today, too.
It is not even likely
that "diversity" will be accepted as a compelling interest in
the K-12 context, even though it was in higher education. The Court stressed
at the beginning of its decision "the expansive freedoms of speech
and thought associated with the university environment" and that
"universities occupy a special niche in our constitutional tradition."
Like it or not, it is much less likely that the justices will give the
deference to every local school board that they felt they had to give
to the officials running one of the nation's largest and most prestigious
universities. Even Harvard University's left-wing Civil Rights Project
has acknowledged that the need for a "robust exchange of ideas"
in the classroom — likewise stressed by the Court — "is
less applicable to education in the lower grade levels." Finally,
the Court thought it important that there be some degree of minority representation
at the most selective universities and, in particular, law schools; but
K-12 "balancing" schemes do not result in a net increase in
minorities getting an education.
Of course, even if
it were permissible for schools to sort children according to race,
there is nothing in the Court's decision to require such a divisive,
unfair, and unwise policy, with all its attendant costs, in terms of money,
parental involvement and support, and so forth. In sum, the Court's recent
affirmative-action ruling has removed few if any of the legal objections
to race-based student assignments, and absolutely none of the policy objections.
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number of legal activists and experts claimed in a recent issue of Education
Week that the Supreme Court's decision this June to allow the University
of Michigan law school's use of racial and ethnic preferences gives a
green light to K-12 plans designed to achieve greater racial and ethnic
"balance" in schools, even when unnecessary as part of a desegregation
plan. I disagree.
