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.
Finally, in 1998 the district implemented the Open Choice Plan. The essence of the Plan was to insure that no high school was racially unbalanced, “Racially unbalanced” meant that a school’s racial composition differed by more than 15 percent from the racial composition of the Seattle public-school system as a whole.
Of course, some of Seattle’s schools are more desirable than others. Naturally, more students wished to attend these schools. The popular schools tended to become “oversubscribed,” i.e., more students applied to them than others. This is where a student’s race became a factor in the admissions process.
To decide who got to attend the desirable school, the plan invoked four tiebreakers. Three of the tiebreakers weren’t controversial: distance from home to school; whether a sibling attended the school and; a lottery for any remaining spaces.
Race was considered if the desirable school had too many or too few students of the applicant’s race. Race was the deciding factor in ten percent of all Seattle Public high-school admissions in the 2000-01 academic year. Moreover the race tiebreaker changed the racial composition of Seattle’s 4 most popular schools by 19.7 percent, 10.1 percent, 21.2 percent, and 14.2 percent respectively.
The lawsuit was brought by parents of children who were or might be denied assignment to the schools of their choice on the basis of race.
As noted, the Ninth Circuit found that Seattle’s interests in promoting the educational/social benefits that purportedly flow from racially diverse classrooms and avoiding the harms that result from racially isolated schools were sufficiently compelling to survive strict scrutiny (the Court also found the plan to be narrowly tailored.)
The Supreme Court, Chief Justice Roberts writing for a majority consisting of Scalia, Kennedy, Thomas, and Alito, reversed, finding that the district didn’t meet its heavy burden of showing that its articulated interest justifies discriminating on the basis of race. In doing so, the Court cited a number of fatal infirmities in the district’s argument that Grutter was applicable and that its standards were met. (The Court did not resolve whether racial diversity was shown to have an effect on educational achievement or socialization because the Court found the racial classifications clearly were not narrowly tailored to achieve the educational/social benefits that purportedly flow from diversity.)
First, the diversity interest in Grutter was significantly different than in Seattle. In Grutter, race was not the only individual student characteristic considered by the University of Michigan Law School in the admissions process. Race was just a flexible “plus” factor that was assessed along with numerous other things, such as the applicant’s GPA, LSAT, extracurriculars, foreign-language proficiencies, employment history, etc. All of these factors were part of Michigan’s effort to expose students to a diverse mix of viewpoints, ideas, and cultures.
In contrast, in Seattle race was the only individual student characteristic considered; more specifically, the district’s binary notion of race — students were either white or “other.” The district’s peculiar concept of race suggested that it was more interested in having a few brown faces — regardless of race or ethnicity — sprinkled in each classroom than in achieving Grutter-style diversity.
That leads directly to the second flaw in Seattle’s policy. Grutter specifically admonishes that racial balancing is strictly prohibited. Yet that is precisely and admittedly what the district was doing. As Roberts notes “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity’” The district’s policy sought a determined percentage of ethnicities in each school. Roberts goes on to observe “[t]his working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw in our existing precedent.”
Less elegant writers simply call “racial balancing” quotas.
The “balancing” was done to offset Seattle’s racially concentrated housing patterns. But the Court reminded that it has repeatedly rejected remediation of ‘societal discrimination” as a compelling state interest. Again, that is exactly what Seattle purported to do, i.e., ameliorate the consequences of readily identifiable housing patterns — even without any evidence that Seattle ever segregated on the basis of race.
The Court also found fault with the district’s failure to consider racially neutral alternatives, as required, before implementing a race-conscious plan. The pernicious effect of this failure is highlighted by the fact that the Open Choice Plan resulted merely in shuffling handfuls of minorities among a few schools. Seven of Seattle’s ten public high schools have no racial majority. By most standards, the schools are remarkably diverse .Racial classifications can’t be used simply to achieve a social utopian’s ideal racial mix.
The Court’s decision should hearten supporters of equal protection. Roberts’ opinion neatly disposes of Breyer’s lengthy dissent (that would uphold race-based assignments), stating succinctly “Justice Breyer’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law.” Justice Thomas also has a masterful concurrence (to be addressed, along with a few other points, in a subsequent column).
The one sour note ( in addition to the Court passing on the educational/socialization effects of racial diversity) is Justice Kennedy’s concurrence, that asserts that Roberts’ plurality opinion is too dismissive of government’s interest in considering diversity and a school’s racial makeup when ensuring equal opportunity.
Apparently, Kennedy conflates the interests of grade schools and elite universities. In Grutter the Supreme Court deferred to the University of Michigan’s articulation of its diversity interest because the First Amendment purportedly grants elite colleges broad autonomy in defining their respective missions. Roberts notes that the same deference isn’t necessarily appropriate for high schools. Nonetheless, Kennedy contends that schools can employ race-conscious measures such as strategic site selection, targeted student recruiting and attendance zones designed with neighborhood demographics in mind.
Expect proponents of racial engineering to seize upon Kennedy’s concurrence. Racial discrimination in school assignments has been dealt a damaging blow, but not necessarily a fatal one.
– Peter Kirsanow is a member of the National Labor Relations Board. He is also a member of the U.S. commission on Civil Rights. These comments do not necessarily reflect the positions of either organization.