A 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.
— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.