The Supreme Court agreed on Monday to rule on what measures, if any, public school systems may use to maintain racial balance in individual schools....Greenhouse notes that the back in December, before Alito replaced O'Connor, the Court denied cert in a similar case. That is, it seemed as though there were not four Justices who were ready to go back to the issue that so recently roiled the Court in Grutter and now there are.
The action came three years after the court upheld a racially conscious admissions plan at the University of Michigan Law School. Writing for the majority in that 5-to-4 decision, Grutter v. Bollinger, Justice Sandra Day O'Connor suggested that, at least in higher education, affirmative action might be necessary for another 25 years.
Briefs are now likely to pour into the court in advance of a November argument; the University of Michigan case drew more than 100 briefs. But one of the more influential analyses may prove to be a brief concurring opinion in the Seattle case by Judge Alex Kozinski, the Ninth Circuit judge whose views carry great weight among legal conservatives.Grutter had a similar theme appealing to conservatives: leave university officials alone to shape policy as they think is right, as they look at complex factors. This is not just a matter of deferring to education experts. It's a recognition that courts may not be able to make better decisions and that more litigation will drain resources that can be better spent elsewhere.
Describing the Seattle plan as one "that gives the American melting pot a healthy stir without benefiting or burdening any particular group," Judge Kozinski addressed the Supreme Court justices directly, on the assumption that they would soon be reviewing the decision.
"There is much to be said for returning primacy on matters of educational policy to local officials," he said.
There are many differences between universities and early schooling however. Young children are compelled to attend school, and parents care a lot about sending their children to a nearby school. We can easily understand why they feel wronged when their child is turned away from the nearest school explicitly because of race, especially in a city (like Seattle) that never practiced segregation.
But there is local government, and these parents had their chance to participate in it and lost. The question is whether they should be able to enlist courts in the project of changing the policy produced by that democratic process. Can you say that they should without repudiating Grutter?