Ninth Circuit nominee Goodwin Liu’s position on school choice has been touted as a supposed exception to his hard-Left record on constitutional issues. But a fuller examination reveals a very different picture: namely, that Liu supports only those school-choice programs that he believes will lead towards the goal of rough racial quotas in schools, and that he views even those programs as a second-best alternative to his preferred means of direct judicial imposition of interdistrict racial-balancing orders. Indeed, so far as I’m aware (and I invite correction on this and other points if there’s material I’ve missed), Liu has never stated his agreement with the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, which ruled that school-choice programs that include religious schools don’t violate the Establishment Clause.
Let’s examine Liu’s law-review article, “School Choice to Achieve Desegregation” (74 Fordham L. Rev. 791 (2005), co-authored with William L. Taylor). In that article, Liu argues that “school choice can and should be used to promote desegregation” (p. 795). Oddly, Liu never defines what he means by the term “desegregation,” but it’s clear that he uses the term expansively to refer not just to undoing the effects of state-imposed segregration but to achieving rough racial quotas in the schools. Thus, for example, one of the two school-choice ideas that he proposes is “a funding set-aside in federal and state charter programs to create and reward charter schools that reflect the racial and socioeconomic diversity of the metropolitan area—not the local school district—where they are located” (p. 808 (emphasis added)). As he puts it, “set-aside programs should use the racial composition of the broader metropolitan area as the reference point for measuring and rewarding diversity” (p. 808). It is in that same sense that the second school-choice idea that he proposes—targeting vouchers to disadvantaged children and raising the amount of the voucher—is aimed at increasing the “desegregative potential of school vouchers” (p. 809).
My point is not necessarily to take issue with Liu’s two proposals but merely to emphasize how narrow they are and how driven they are by Liu’s mentality of racial quotas. It’s not just that Liu opposes a “universal voucher program with no eligibility requirements based on socioeconomic or educational disadvantage” on the grounds that it “would likely increase segregration in both public and private schools” (p. 805). It’s also that Liu doesn’t believe that school choice within existing urban district boundaries would yield meaningful benefits to students within those boundaries. Perhaps he’s right, but it’s odd that supporters of school choice, who have much more faith in the transformative potential of competition to improve schools, would see him as much of an ally.
Further, Liu believes that the Supreme Court’s 1974 decision in Milliken v. Bradley, which (in his summary) “limited the legal availability of interdistrict school desegregation remedies to situations where plaintiffs could prove that ‘there has been a constitutional violation within one district that produces a significant segregrative effect in another district,’” was wrongly decided: “With that decision, enclaves of affluent white families in suburban school districts obtained near immunity from the reach of school desegregation, even when such remedies were logistically feasible and necessary to correct a racial wrong” (p. 792 & n. 8). Liu thus makes clear that his preferred approach to achieving racial quotas in the schools would be by judicial fiat, and it’s only his observation that Milliken “seems firmly embedded in the law” (p. 793) that leads him to explore his limited school-choice proposals to make progress toward that same end.
Liu’s proposals, of course, operate on the terrain that the Court’s decision in Zelman opened up, but while Liu refers to the Zelman ruling, he gives no indication that he believes that it was rightly decided. Similarly, in an ABA Journal article about the Florida supreme court’s 2006 decision that struck down the state’s school-choice program, Liu seemed to welcome the court’s dubious reliance on the state constitutional guarantee of a “uniform, efficient, safe, secure, and high-quality system of free public schools.” In the reporter’s paraphrase, “Regardless of whether courts follow the same reasoning as the court in Florida, Liu and others stress that [the court’s] decision gives legislators a new rationale for rejecting voucher programs.”
Bottom line: Liu is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal.