The Supreme Court has seized an opportunity to stop the erosion of the strict-scrutiny standard of review for state-sponsored racial classifications. On Monday the Court decided to review two circuit-court cases–Parents Involved in Community Schools v. Seattle School District, and Meredith v. Jefferson County (Ky.) Board of Education–involving the use of race by school districts to assign students to limited slots in public schools. The circuit courts relied on the Supreme Court’s 2003 affirmative action decisions, Grutter v. Bollinger and Gratz v. Bollinger, in upholding the constitutionality of the race-based assignments.

While there are a number of factual differences between the cases, both Seattle and Meredith involve attempts by the respective school districts to achieve racial balance by assigning some students to “open choice” schools on the basis of race. Because the Ninth Circuit’s opinion in Seattle provides more factual and analytical detail, and to keep this as simple as possible, this article will focus on the Seattle case.

The law holds that racial classifications created by the state are inherently suspect. Therefore, such classifications will be struck down unless they pass the two-pronged strict-scrutiny standard: (1) the classification must serve a compelling state interest; and (2) it 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.

The Ninth Circuit’s decision validates the Seattle School district’s efforts at social engineering. It does so by diluting the strict-scrutiny standard.

The court held that the 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 analyses in Grutter and Gratz. As outlined in part below, the Ninth Circuit’s analysis is flawed. (Because of the length of the Seattle decision, this article will only address the compelling-state-interest analysis. A review of the “narrow tailoring” analysis will be done in a later article)

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

Seattle never segregated its schools on the basis of race. Nonetheless, because members of a particular race or ethnic group tended to cluster in certain neighborhoods, Seattle’s 10 public high schools reflected the racial concentrations of the surrounding neighborhoods.

The Seattle Public School 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 program was extended to middle schools in the 1970s.

The district increased its efforts again in the mid-70s by eliminating the ability of white students to leave a school with a heavy minority enrollment. Then in the late 70s the district instituted a magnet-school program to achieve racial balance.

Despite the district’s dogged efforts to achieve racial “balance,” by the ‘77-’78 school year the school population had become even more racially unbalanced. Frustrated district planners then embarked on an ambitious, highly touted “desegregation” program known as the Seattle Plan, the particulars of which are frankly unimportant because it was abandoned two years later when it, too, proved incapable of achieving racial balance.

District planners noted that their best-laid plans were no match for Seattle’s pesky housing patterns: People continued to live, in the main, among their own racial and ethnic groups.

But the district’s planners were tenacious. Next they adopted a plan called “controlled choice.” Again, never mind the details, as this plan was discarded after 6 years.

Then, in 1994, the district instructed its planners to devise an assignment system, the guiding features of which were “choice, diversity, and predictability.” It took 4 years, but in 1998 the district finally unveiled the “open choice” plan that is the subject of the present case.

The open-choice plan

The essence of the plan is to ensure that no high school is racially unbalanced. “Racially unbalanced” means that a school’s racial composition differs by more than 15% from the racial composition of the district as a whole.

Of course, for a variety of reasons, some of Seattle’s schools are more desirable than others. Naturally, more students wish to attend these schools. The popular schools tend to become “oversubscribed”, i.e., more students apply to them than others. This is where a student’s race becomes a factor.

To decide who gets to attend the desirable school, the Plan invokes 4 tiebreakers. Three of the tiebreakers are not controversial: distance from the student’s home to the school, whether a sibling attends the school, and a lottery for any remaining spaces (very seldom used).

Race is considered if the desirable school has too many or too few students of the applicant’s race. Race was the deciding factor in 10 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 four 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.

the ninth circuit finds a compelling state interest

The district asserted that its racial assignment policy served two compelling interests: (1) securing the educational and social benefits that flow from racial diversity; and (2) avoiding the harms that result from racially concentrated schools. In support of its allegedly compelling state interests, the district cited the testimony of social scientists who claimed that racially diverse schools promote critical-thinking skills, improve race relations, and “open opportunity networks of higher education and employment.” The district also cited research that racially isolated schools have lower test scores and achievement levels–something the district wished to avoid.

The court found these interests to be sufficiently compelling to survive strict scrutiny. (The court also found the Plan to be narrowly tailored.)

The decision doesn’t pass muster under Grutter. Although Grutter itself lowered the compelling-state-interest bar, the Ninth Circuit in Seattle goes much lower, skimming over big differences between the two cases and ignoring entirely some of Grutter’s predicates for passing strict scrutiny.

The district’s interests are commendable. Assuming that the district’s articulated interests are in fact supported by solid evidence, these are desirable goals. But commendable and desirable are not the same things as compelling. Courts have been extraordinarily reluctant to uphold state-sponsored racial classifications regardless of how benign or well-intended, because history shows that they’re inherently problematic. Commendable and desirable goals aren’t enough to overcome the presumption against racial classifications. Consider just the following four defects in the Seattle analysis:

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. In Seattle, race is the only student characteristic considered.

Second, Grutter specifically admonishes that racial balancing is strictly prohibited. Yet that is precisely and admittedly what Seattle is doing.

Third, the Supreme Court has repeatedly rejected remediation of “societal discrimination” as a compelling state interest. Again, that is exactly what Seattle purports to do–even without any evidence that Seattle ever discriminated.

Fourth, 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. That deference hasn’t been extended to high schools. Seattle won’t be given the same latitude as Michigan. And given the thinness of the social science introduced in support of its diversity interest, Seattle needs all the latitude it can get. The correlation between racially balanced schools and academic and social skills is marginal and in some dispute among social scientists. As the Seattle dissent notes: “One would think that to be ‘compelling’ there would be no room for doubt of the need for [the Plan]”.

Moreover, the district has a peculiar view of racial diversity: you’re either white or you’re not. Apparently the district maintains that blacks, Hispanics, Asians, and Native Americans are indistinguishable. “Diversity” means a room with a few brown faces, regardless of shade, regardless of ethnicity. This feature of the plan alone should be enough to sink it.

These are just a few of the problems with Seattle. There are even more problems with its narrow-tailoring analysis.

The Supreme Court has changed since Grutter. But even the 2003 Court would have trouble swallowing Seattle.

– 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.