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December 5, 2006

Race In School Assignments.

T
he Supreme Court yesterday heard argument in two cases challenging race-based school assignments. Seattle's plan used race as a tiebreaker for assignment to oversubscribed high schools, in the name of keeping the racial makeup of Seattle's high schools within 15% of the district's overall white/non-white makeup. The Louisville (Ky.) plan applied to all schools, not just high schools, and used race to assign kids to schools in a way that would keep each school's black population at a required 15%. Given strong patterns of residential segregation across the country, these sorts of plans have been important to districts seeking to achieve and sustain a degree of racial integration in their schools.

If Justice Kennedy's questions at yesterday's arguments are the bellwether -- and in a case such as this, there's good reason to think they will be -- both of the challenged plans are doomed.

If this is the outcome, I'll be at least a bit surprised. Going into the argument, I expected that the Court would strike down the Seattle plan but uphold the Louisville one, at least in part because of Lousville's history of de jure race discrimination in school assignments. I anticipated a majority opinion that conceded a compelling interest in racially integrated public schools, but held that Seattle's plan was not drawn carefully and narrowly enough to accomplish that goal.

This was the 7-to-2 conclusion of my Constitutional Adjudication Seminar this semester, incidentally. It's a seminar in which students brief, argue, and then decide pending Supreme Court cases. A seven-student (well, actually six students, plus myself) voted to uphold the Louisville plan and strike down Seattle's. The two dissenting students would have struck down both plans.

It sounds as though five votes weren't in evidence yesterday for the proposition that these plans are serving a compelling state interest in racial integration. Rather, it sounds as though Justice Kennedy and Chief Justice Roberts can't get past the simple fact that school districts are using race as a basis for school assignment, period.

If that's so, we will have traveled a long, strange road from the decades between 1954 and around 1974, when racial integration in public schools certainly seemed to be a very important objective of the Equal Protection Clause.

Posted by Eric at December 5, 2006 8:00 AM

Comments

The Seattle Schools' use of race IS worse than Jefferson County's.

Seattle's is unconstitutional in many ways, while Jefferson County's is only unconstitutional because there's no sunset provision on its use of race. The former flunks constitutional requirements by a mile, the latter only by inches.

One really bad facet about Seattle's policy is its bad motivation. (Under Shaw v. Hunt, even an otherwise valid affirmative action policy can become invalid if improperly motivated. 517 U.S. 899, 904 n.4 (1996)).

Seattle is promoting racial stereotypes, not integration or the concept of a melting pot.

The Seattle Schools' web site denounces "concepts such as a melting pot," claims that planning ahead ("future time orientation") is a white characteristic that it is racist to expect minorities to exhibit, claims only whites can be racist, and denounces "individualism" as being a form of "cultural racism."

The real reason that the Seattle Schools set racial quotas for each covered school was that they thought students of different races have innate racial differences, rooted in racial stereotypes, not because they cared about integration in the traditional sense, or about promoting a melting pot.

Posted by: Hans Bader` at December 5, 2006 7:19 PM