December 4, 2006

"'The office of student services has disapproved your transfer request' because it would 'have an adverse effect on desegregation compliance.'"

Do you accept that... well, not you, you're a 5-year-old boy... should your mother accept that? Crystal Meredith did not, she sued, and the Supreme Court hears oral argument today:
Her lawyer, Teddy Gordon, says... it "is a pure quota," adding, "We've color coded children."...

To supporters of the Louisville plan, diversity is more important in early grades than it is in college. Opponents counter that there are other race-neutral ways of achieving diversity -- such as assignment by socio-economic status. In school surveys, however, Louisville parents have rejected that approach as too intrusive, since it would require that families supply the school board with personal information.

What the parents want is important, the school board says. It points to the fact that white students were fleeing the Louisville public schools by the thousands until the board adopted a plan in the mid-1980s that combined race-conscious student assignment with choice. Suddenly, school attendance stabilized....

PTA board member Mary Myers says the race-conscious assignment plan has also equalized school resources. "My children do not have to sit next to a white child to learn," she says, "but they need the resources of that school," and under this system, "they all get the same resources."...

The Bush administration and its former solicitor general, Ted Olson, point out though, that before 1954, racially segregated schools were highly popular too. "To deny people opportunities on the basis of race because you've been re-elected by a high popular vote just won't cut it under the Constitution," Olson says.

The Constitution, he adds, requires that the government be colorblind. It cannot discriminate to offset societal discrimination. Frank Mellen, the school board's lawyer, says that's simplistic since the Louisville plan is an evolution of what the federal courts ordered until just six years ago.

"It would be odd," he says, "if what was legally required one day by a desegregation decree becomes forbidden another day when the court dissolves the decree."
There's much more at the link, and plenty of discussion elsewhere on the web about today's tremendously important cases. (The second case is about the Seattle schools.) Please read the whole article. Your comments here will be better if you speak to the specific details to the case and understand the context, even if it is your inclination to answer the question with a bright, ideological rule. Keep in mind that Judge Alex Kozinski, a judge who is highly respected by conservatives, approved of the Seattle program, writing that it "is not meant to oppress minorities, nor does it have that effect. . . . There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another."

44 comments:

Simon said...

This morning's Washington Journal features the head of the LDF, who argued not ten minutes ago that the most important precedent in today's decision is Brown v. Board. Moreover, at SCOTUSblog on Friday, Lyle Dennison wondered aloud if this case could be Brown III. Frankly, I find it astonishing to learn that fifty years on, Brown v. Board has been transformed into a case that should be read to support racial discrimination.

Ann Althouse said...

As the linked article said, the desegregation orders coming out of Brown required race to be taken into account. In that sense, it is inaccurate to view what these cities are doing as the opposite of Brown.

class-factotum said...

I love the part in the story I read about the case on Sunday where "Pat Todd...said the average bus commute in the district is 45 minutes." As if that is an acceptable amount of time for a child to spend on a bus.

I live in Memphis, which is still under court-ordered bussing. If I had kids, they would not be able to go to the school four blocks from my house. Instead, they would be bussed across town. Why not just improve the neighborhood schools instead of bussing kids to a bad education?

Oh. Right. To serve the higher god of diversity.

(Incidentally, Memphis has horrible public schools. When bussing was started, almost all parents who could afford to do so, black or white, put their children in private school. So now they pay taxes for public schools and $4,000 to $12,000 a year for private school tuition. The public school valedictorians get 21s on their ACTs; private school kids get 34s.)

tjl said...

The NPR article tells us that Seattle's plan is no longer in force, while Meredith's transfer request was eventually granted. Maybe the SC will surprise everybody by holding that both of these cases are actually about standing.

Both cities' plans allow many different alternatives -- e.g., specialized programs v. traditional ones, in addition to the neighborhood school. It's not a simple matter of either you get in or you don't. The plans can easily be distinguished from what Michigan was doing in Grutter.

Ann Althouse said...

Class-factotum: You're complaining about court-ordered busing, but these cases are about a plan the cities adopted for themselves, pursuant to the local democratic process. The issue is whether the courts should intervene and deprive the majority of what it has decided it likes. That's a very different context. Please address that.

Ann Althouse said...

I think it's easily predictable that the cities will win, the only question is whether they will win by more than 5-4. The basis for deferring to the cities is very strong, and the call of judicial restraint is distinct.

class-factotum said...

Sorry, Ann. I started with the Crystal Meredith story (the Pat Todd quotation) and segued into my own drama!

Ann Althouse said...

Class-factotum: It's okay to relate the story to your own situation, but you are making a serious mistake if you reason by analogy when your situation is completely different. I am not asking you to explain your inclination to switch to talking about your own life, I am asking you to sharpen your thinking about legal issues. I'm being the lawprof here today.

Zeb Quinn said...

For all their self-serving ballyhooing about how "successful" the Louisville plan is, even to the point that a one-time critic is now an entrenched board member manning the ramparts in its defense, nobody talks about results. By "results" I mean real results. After 31 years in Louisville, 1975 to present, a supremely ample baseline, show us the test scores that show black kids scoring the same as, or God forbid, even exceeding white kids, even if only here or there. Go ahead and adjust them for economic factors, comparing lower income to lower income, middle class to middle class. That's okay, and that's the fair way. But where are those results? After 31 years, where are they??? And show us the college entrance rates for white kids and black kids. Where are they?

If they had them in their favor or even they were merely trending in their direction they'd be screaming them from the rooftops to justify this program.

The absence is telling.

jaed said...

a plan the cities adopted for themselves

Mrph. Can they be said to have been completely free of the shadow of court-ordered race-based busing and school assignment, though, even if they were not under court order? In the Louisville case, the city seems to have initially adopted the plan under court order, even if it's not court-mandated now. I can't figure out whether the possibility of a lawsuit figured in Seattle's decision, but it does seem possible.

Oddly, using race as a tiebreaker when schools are oversubscribed doesn't bother me as much as using it as a primary selection mechanism; I'm not sure why that's so, because I think the constitutional rule ought to be the same. Perhaps because when it's only used as a tiebreaker, no student is refused admission to the school of his or her preference (or parent's preference) solely because of race.

Daryl Herbert said...

From reading the article, it sounds like Louisville has a decent setup that goes beyond racial balancing and tries to cater to children's needs.

Is it racist to fear that white children sent to majority-minority schools would be subject to racial abuse? Wasn't that the fear people had back in the 1970s? Regardless of whether their fears were rooted in racism, how often did that sort of violence take place?

I'll bet that's an issue left-wing social science researchers have never dared to touch with a ten-foot pole (though I'm sure they dismiss it offhand with a sneer)

As long as the school administrators do their jobs and prevent that sort of racial bullying (or serious bullying of any other kind), the program sounds fine.

Dust Bunny Queen said...

The goal seems to be (as I understand it)to counter self segregated schools that have been created by demographics. i.e. people living in neighborhoods of people who look like themselves or share the same culture. By re-shuffling the school deck they hope to create schools with the approved percentage of "races" despite the demographic trends that the residents have set up themselves.

Is the next logical step to force approved mixes of people in their choice of residence? Forcing populations in neighborhoods to be the right mix. "I'm sorry Mr. & Mrs Chan, we already have our approved quota of Chinese residents in this subdivision/apartment building/condo development. You will have to buy a home elsewhere."

Anonymous said...

I think these cases present an important fork in the road for post-Brown constitutional law. Brown was one of the earliest cases to rely on social science in support of a decision as to the meaning of constitutional text. Of course, now it is commonplace to be drowned in social science research any time a key social issue is to be determined in the courts. This case is no exception, with numerous amicus submissions debating the supposed scientific proof of the benefits of racially diverse classrooms, etc.

What these cases will test is which is the stronger Brown legacy: taking the Equal Protection Clause seriously (i.e. enforcing its literal terms), or allowing constitutional law to follow prevailing fads in the social sciences. Assuming the accuracy of Ann's prediction of at least a 5-4 win for the cities, it appears we'll have to brace for the sad eventuality of the core holding of Brown being eclipsed by the preference for bending constitutional principles to fit prevailing social science orthodoxy.

I'll admit I don't get Kozinski's concurrence. Why the does purity of the government actor's motives matter? How could such a consideration possibly work as a constitutional standard?

And finally, as to framing the issue as "whether the courts should intervene and deprive the majority of what it has decided it likes," that ought to be the first consideration taken off the table in any Equal Protection case. Equal Protection jurisprudence (at least as applied to racial classifications) is not supposed to include a default preference for what the majority likes.

Mortimer Brezny said...

I think it is a clear win for the cities as well. But I am surprised Ann agrees, because no one I know seems to think SCOTUS would have taken the case if not to strike down the plans. But the most important point is this one: if schools can use race to determine admissions to K-12 schooling, then they can certainly tell your 5-year old boy not to wear dresses to school.

MadisonMan said...

Zeb Quinn, absence of evidence is not evidence of absence.

Simon said...

Ann,
Brown II characterized the holding of Brown I as "racial discrimination in public education is unconstitutional." Brown II, 349 U.S. 294, 298 (1955). Moreover, that cases was about providing a remedy for explicitly government-maintained de jure segregation; extreme measures there may have been justified. They are not here. These cases are not about government-mandated segregation, as Justice Scalia noted at oral argument, they are about whether the government may take race into account in distributing children among schools in pursuit of the laudable goal of racial diversity. Those means - not the goal, but the means - put the instant cases on a collision course with the proposition that "racial discrimination in public education is unconstitutional." That statement is eviscerated if the school boards prevail today, and for that reason, I would maintain that in the most meaningful sense, what these cities are doing is the opposite of Brown. The Fourteenth Amendment - with very few exceptions - mandates a colorblind government, even when that stricture (as many of the Bill of Rights' strictures) is downright inconvenient.

Mortimer Brezny said...

The Fourteenth Amendment - with very few exceptions - mandates a colorblind government, even when that stricture (as many of the Bill of Rights' strictures) is downright inconvenient.

I just re-read the Fourteenth Amendment, and I don't see the word "colorblind" in it. What happened to the text? Is that a textualist or a purposivist reading, Simon?

Simon said...

Mortimer,
Article I never uses the word "veto" either - does that mean the President doesn't have one?

SarahWeddington said...

Ann writes that Judge Kozinski is highly respected by conservatives. I don't know what conservatives she's talking about.

He's highly respected by libertarians, but I don't think too many conservatives hold him in high regard. Certainly not in the first tier. I can think of at least a handful of Judges more highly respected than Kozinski:

Luttig, K. Williams, Alito, Randolph, Sentelle, Brown, Pryor, Jones, Higgenbotham, Wilkins, Easterbrook, etc...

I think Kozinski may be intellectually respected on the lines of a Dick Posner, but no one thinks he's a real conservative on the lines of a Scalia, Thomas, Rehnquist, Bork etc...

This case should be pretty easy and based on the oral arguments, I predict the petitioners win both cases 5-4. Kennedy gave pretty strong signals that he has problems with both cities' programs.

Simon said...

Sarah said...
"This case should be pretty easy and based on the oral arguments, I predict the petitioners win both cases 5-4. Kennedy gave pretty strong signals that he has problems with both cities' programs."

I agree, and I really would like to know where Ann thinks this fifth vote is coming from. Surely not from Justice Kennedy, who went out of his way in his Grutter dissent to make explicit what might be inferred from his joining the Chief Justice's opinion in Gratz: that Justice Kennedy views racial classification as a permissible criterion only where it can survive under strict scrutiny. And in his Croson concurrence, Kennedy stated that "The moral imperative of racial neutrality" -- that is, in other language, colorblindness, Mort -- "is the driving force of the Equal Protection Clause." In one of his occaisional flashes of clarity, Justice Kennedy continued (as if in answer to Ann's earlier point about Brown II): "[t]he rule against race-conscious remedies is already less than an absolute one, for that relief may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause" (emphasis added), but in cases where the Court is presented "with an ordinance and a legislative record open to the fair charge that it is not a remedy but is itself a preference which will cause the same corrosive animosities that the Constitution forbids in the whole sphere of government," that measure will not pass strict scrutiny.

A man who expects consistency from Justice Kennedy is a man who invites disappointment into his life, but in this case, I have a hard time believing that this program survives strict scrutiny, and so I have a hard time believing that Kennedy will rat. Thus, I would tend to agree with Sarah that this case is going to be 5-4, but not for the schools. As dismal as my opinion of Justice Kennedy is, and as much as I expect him to rat in Carhart, I have a pretty good level of confidence that the good guys are going to win this one.

Mortimer Brezny said...

After listening to both oral arguments, I must say I am suprised at how easy a time Mellen had.

Clearly, Souter, Breyer, Ginsburg and Stevens line up on one side. Thomas and Alito are on the other.

I am unsure where Roberts, Kennedy, and Scalia are going, but any of them could provide the fifth vote. I think Ann is playing the odds: it is unlikely that all three will break for the other side. Kennedy, Alito, and Roberts seemed to indicate they were "gettable" votes (or Kennedy indicated that in one of his questions, though I doubt Alito is "gettable").

Simon said...

Mort,
I explained above why I think Kennedy comes out for the petitioners in this case, and to that, I'd add that if you think Scalia's vote is in play, you need to read his concurrences in Richmond v. Croson and Adarand Constructors v. Pena, and his dissent in Grutter. But I'm intrigued as to what your pitch for the Chief Justice's vote would be?

Mark R. said...

I am surprised that none of the arguments presented in the case, or discussed here raise the issue of harm to the child from being bussed to a far away school instead of a preferential claim to a spot in a closer, local school.

To have a child spend an extra hour or more of a day on the bus is a) raises their risk of a traffic accident purely from miles driven, and b) deprives them of that hour to study, play, relax, be with their family, etc.

It's just seems wrong to force a child to go to a far away school when there's a local school in the neighborhood. It may be occasionally justified if the local school is oversubscribed, but even then the child should be allowed to try to go to the next nearest school, rather than be bussed an hour to a school selected for racial balance reasons.

Is it constitutional for a city ordinance to impose the higher risk of traffic accidents and extra time burden on school children? The school day is long enough, and the traffic statistics are bad enough that I would certainly not allow my children to be treated as some pawns in a coercive scheme like the one described in the two cases.

Mortimer Brezny said...

I'd add that you need not to talk to me like I haven't attended law school. If I were you, I would check out Roberts' oral argument in Rice v. Cayetano. And, for a textualist, Simon, you seem to have some problem today understanding what I meant by exactly what I said: I am unsure where Roberts is going.

I would also suggest you listen to the oral arguments. 1. Scalia was not totally on-board with the petitioners' arguments, in the least. 2. There is no guarantee -- none at all -- that the Justices, especially if Kennedy is writing the opinion in favor of the petitioners, will simply graft Adarand and Croson, two easily distinguishable cases, on to the K-12 context. Adarand and Croson don't even involve schools or the making of educational policy. If kennedy is willing to disregard Grutter because it involves the First Amendment, it's enough to disregard Adarand and Croson for their irrelevance to discretionary policy-making in the educational context. If the petitioners win, I sincerely doubt the court will simply parrot Clement's arguments, which most of the bench seemed to cold toward.

Your analysis is bad, in my opinion, because you can't just look to past opinions of Justices to predict their future voting-behavior. Any prospectus will tell you that's question-begging ("Past performance does not determine future results"). And, aside from its fallaciousness, if it worked, then you would have foreseen Scalia's concurrence in Raich and his support of Sixth Amendment rights in Gonzalez-Lopez. Did you?

Cedarford said...

Ann - Class-factotum: You're complaining about court-ordered busing, but these cases are about a plan the cities adopted for themselves, pursuant to the local democratic process. The issue is whether the courts should intervene and deprive the majority of what it has decided it likes. That's a very different context. Please address that.

Yes and no, Ann. If you are in law professor mode....

Yes, the racial quotas are promulgated by elected school boards.
No, they would not be doing so unless they feared the money and power of the ACLU-types or others coming in and suing the city if they failed to be properly multi-culti. So playing it safe means boards are saying some students must accept severe impositions (3 hour commuting times, lack of school socialization with nearby peers) and NOT go to a good local school based on their race - but HAVE to be bused across town to meet racial targets.

The same sort of decision-making process under lawyer pressure that leads school boards to democratically decide to be safe and sanitize Christ out of school Christmas activities. Or ban JROTC and other controversies that could embroil volunteers in unwanted litigation.

Now there are certainly school board members that are elected espousing belief in PC and that they honestly want 100% secular school programs, that JROTC is evil and homophobic, and that lack of this or that color in "acceptable proportions" is unthinkable. But the "democratic"
process occurs under shadow of law and lawyers and fear that being a Board member could entail subpeonas at one's doorstep if they decide "wrongly".

Hopefully the Court will look at it not as "elected members doing noble work of advancing society and avoiding trouble" that are the most affected parties, but the children.

Are there children that are subjected to harm based on purely on their being individual victims of racial discrimination?

Yes. Students in Louisville and Seattle are harmed from up to 3 hours of busing precluding their using that time for meaningful study in a conducive environment, participation in after-school activities including sports, or if older, after-school jobs. Harm from missing out in socialization in their immediate neighborhood. Potential harm from inability of remote parents to monitor their progress, guage effectiveness of the school, or quickly be there for their children in an emergency.

And just so you know, I was a former "victim of being white" from a voluntary busing plan made by a school board and lawyers that feared lawsuits by ACLU, NAACP. Half my housing development got to attend the local HS one mile away (the side with 2 school board member's kids). All blacks got the local school, automaticaly. I got bused to a school 11 miles away on the opposite side of the city. With racial fights at the connecting bus stop. With inability to do after school activities unless parents chauffered. With 2 working parents, I did activities despite that, even though it involved walking or hitchhiking the last 5-6 miles home not served by city or school buses in the evening. Winters walking or hitching in freezing weather and darkness were tough.
At school, little "diversity" benefits existed. Racial tensions were high. Whites hung with whites, blacks with blacks. Few blacks were in the honors classes, mainstreaming classes were mainly an education in how to learn despite the constant class disruptions or how to move ahead and learn more while the teachers focused on the laggers.
In our housing development, frienships changed based on school assignment, and the lawyers moved the "who goes where" map a few streets over based on those whites who could do so - fleeing to private schools. Which finally caused an uprising to block seniors and juniors from being uprooted. My parents chose to save for their 3 kids college, instead.

Simon said...

"I'd add that you need not to talk to me like I haven't attended law school."

Why would I assume that you had? This is not a blawg, so there is no particular reason to assume that most posters here are legal professionals of any stripe. Nor is there anything in your profile to suggest that you have, and there's no way to infer from your comments (those that I've read, at least) that you have or haven't. Thusfar, all I know about you is that you're a valuable commenter here, you have evident familiarity with legal materials, and you seem to share my high opinion of our hostess, none of which is a prima facie case to infer your educational background.

As to Rice, I'm not familiar with that case, but I'd note that from the date alone, it's apparent to even the casual observer that Roberts' involvement in that case was as an advocate. Unless you believe that Roberts is an astonishingly incapable lawyer -- hardly the consensus view, I think -- I don't see how you can possibly infer his views on the case from what he argued for his client in that case, unless you also believe that the taxi driver who conveyed Roberts to the Court that morning just happened to fancy a leisurely drive from 555 Thirteenth Street NW to 1 First Street NE, rather than efficiently executing the desire of his paying client.

On the question of predicting voting patters, I concede that in Kennedy's case, that's difficult to do, because Kennedy has the principles of a bowl of jello. Which is to say, he's a pragmatist: he either doesn't have, or has never showed the faintest hint that he might have, an overarching theory of what law is and how you interpret it. He lacks the formalist's interest in rules, which is one of the principal reasons why I find him so objectionable as a jurist. None-the-less, I think he has articulated a view in the past of the issues in this case that seem to make his voting for the good guys quite likely.

Scalia, of course, is a different story. Perhaps it's just because I've spent an unhealthy amount of time contemplating his opinions and methods, or more likely it's because he more than most jurists has in spades the very virtues that Kennedy lacks, but for the most part, I feel like I can read the briefs and tell you which way Scalia's going to come out, for most cases. Did I see Gonzales-Lopez coming? Yes, absolutely. I think Scalia's Sixth Amendment jurisprudence points directly at that result. Did I see Raich coming? Honestly, no - but in hindsight, I suggest that I should have seen it coming. Scalia declined to join Justice Thomas' concurrence in Lopez, and Scalia and I have always had a stronger view of stare decisis than does Justice Thomas. I was and remain surprised by the tone of his concurrence, though - I would have expected him to much more strongly emphasize that his vote had different doctrinal underpinnings. In any event, I would suggest that Justice Scalia's principal contribution to law has been to spearhead a revival of formalism and rules, and those animating beliefs make his vote in this case fairly easy to predict. I would be very disappointed - indeed, I would be absolutely astonished - if he voted with the school boards in these cases.

Anon Y. Mous said...

14th amendment: "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ..."

Ann Althouse: "The issue is whether the courts should intervene and deprive the majority of what it has decided it likes."

I'm going to have to go with the constitution here.

Mortimer Brezny said...

As to Rice, I'm not familiar with that case, but I'd note that from the date alone, it's apparent to even the casual observer that Roberts' involvement in that case was as an advocate. Unless you believe that Roberts is an astonishingly incapable lawyer -- hardly the consensus view, I think -- I don't see how you can possibly infer his views on the case

He didn't have to take the case if he disagreed with the argument. He certainly presented the argument to the court. Rice involved use of racial classifications in distributing trustee benefits in Hawaii. The position Roberts advocated in favor of there is about as far from the position you are trying to impute to him now as can be. I have a hard believing Roberts has strong, principled beliefs that would lead you to confidently predict him necessarily striking down the programs here, given that he was willing to go blow for blow with Ted Olson in advance of the exact opposite position only a few years ago, in exchange for cash. Listen to the oral arguments. And note what Kennedey's ruling was there, too.

Mortimer Brezny said...

Did I see Raich coming? Honestly, no - but in hindsight,

Hindsight is not forecasting. You are engaging in what is called a post hoc rationalization. I would note that I saw both Raich and Gonzalez-Lopez coming and I disagree with you here.

Atticus said...

Mark R. said...
"I am surprised that none of the arguments presented in the case, or discussed here raise the issue of harm to the child from being bussed to a far away school instead of a preferential claim to a spot in a closer, local school."

Some parents from the bad areas of town prefer to put their children on a bus and send them across town. The bus ride is safer than the child walking two blocks to the neighborhood school. The mother of my daughter's friend told me that is the reason she wants her little girl bussed out of the neighborhood.

As much as individual teachers, administrators, and parents hate it, government regulations require them to track students according to race. There is no possibility of ignoring race.

One more tidbit. In my city, parents don't need to provide any kind of information for the school district to know who is low income--because they already provide that information when they apply for free or reduced lunches. If you don't apply for free or reduced school lunches, then you must be wealthy.

Somebody stop me... And if your school is tagged as "wealthy," then the PTA is expected to ante up for playground equipment and air conditioning while the poor schools get it from the district. I don't know how to solve that one, but I do know that discussions about "equity" never talk about that.

Mortimer Brezny said...

and there's no way to infer from your comments (those that I've read, at least) that you have or haven't.

you have evident familiarity with legal materials


Oh, look. A clue.

Mortimer Brezny said...

http://www.oyez.org/cases/case/?case=1990-1999/1999/1999_98_818

Mortimer Brezny said...

In any event, I would suggest that Justice Scalia's principal contribution to law has been to spearhead a revival of formalism and rules, and those animating beliefs make his vote in this case fairly easy to predict. I would be very disappointed - indeed, I would be absolutely astonished - if he voted with the school boards in these cases.

Because Scalia would never decide a case on the basis of deferring to state governments.

Mark R. said...

Some parents from the bad areas of town prefer to put their children on a bus and send them across town. The bus ride is safer than the child walking two blocks to the neighborhood school. The mother of my daughter's friend told me that is the reason she wants her little girl bussed out of the neighborhood.

That might be, but are you suggesting that this is the reason to bus some other kids from far away to that unsafe neighborhood? Just because some neighborhoods in the city are unsafe, should all kids in the city be exposed to the risks? This is a crazy argument. The city should strive to make your daughter's friend's neightborhood safe enough to go to school, not make other kids subject to unsafe circumstances to compensate for its ineptness. Or they can move all schools from unsafe to safer neighborhoods, and bus kids from unsafe neighborhoods to where parents feel they would be safer. That should not entitle the city to coerce other kids to going to those unsafe neighborhoods.

When I was making an argument about possible harm to bussed children, I was just thinking about the time extra time they would spend on the road. But clearly the risks to being in an unsafe neighborhood, plus the inability to socialize outside of school with kids who live an hour away and can't come over to play or to study without someone driving them, all seem to support the notion that this co-erced program is truly harming at least some of the children subjected to it.

Zeb Quinn said...

MadisonMan said

absence of evidence is not evidence of absence

Sure it is. In fact the silence is deafening. The utter failure of the public schools to bring black student performances up to the performance levels of other races, as manifested on standardized tests, despite 30 plus years of busing and quotas and all manner of other funded programs for the purported purpose of supposedly giving equal opportunities to all, is the elephant in the room nobody even looks at let alone brings up.

And for the Supremes to be playing patty-cake with local school districts in their efforts to achieve visual coloration harmonics --pleasing to the eye-- is sophistry at best and preposterous at worst. If the court really wanted to make a difference they'd be holding the school districts' feet to the fire over things that really matter, and be a little proactive when and where it makes a difference for once.

Richard Dolan said...

After reading the transcript of the argument in the Seattle case, I don't see why anyone would think that Seattle is likely to win this case. The transcript of the argument in the Louisville case wasn't posted on the SCOTUS site when I checked a while ago.

As for Justice Kennedy, he makes a point of saying during the Seattle argument that, even where race conscious factors can be used for purposes of making pupil assignments, the Court has always insisted that they be a last resort. From his questioning, he seemed unconvinced that the Seattle plan used race conscious factors as a last resort.

Scalia and Roberts both seemed quite hostile to the Seattle plan. among other things, Scalia offered an elaborate analogy to Gov't funding of festivals in Little Italy's and Chinatowns, which he said were perfectly OK if intended to foster diversity and cultural preservation. But Scalia thought that such programs would cross a clear constitutional line if the Gov't accorded preferences for particular ethnicities in Gov't housing to achieve the same goals. As he made plain, his point was that diversity as a Gov't goal is fine, but the means to achieve it must comply with equal protection requirements. During Seattle's argument, Roberts asked whether Seattle really meant to defend the "separate but equal" justification of Plessy that Brown had rejected. Roberts is clearly no fan of racial line-drawing by Gov'ts, and nothing in his questioning today suggested that he had suddenly become one.

Alito (along with Stevens and Breyer) seemed most interested in the real world consequences of the Seattle plan. During his rebuttal argument, Petitioner's attorney went immediately to that subject, and offered the Court specific cites to the appendix to show, in substance, that Seattle's schools maintained a high level of racial/ethnic diversity even after the plan under consideration in this case was ended.

One other factual oddity about the Seattle case came out during the argument. For its racial classifications, Seattle basically uses a white/non-white scheme. Several justices asked about how Asians and Hispanics fit into this scheme; whether a school that was 60% Asian/Hispanic, 40% white and 0% black would be deemed by Seattle to be racially balanced; and the like. The point of that questioning seemed to be that Seattle's exercise in social engineering was pretty unsophisticated if diversity was the goal.

If I were Seattle's lawyer, I'd be worried about a 5-4 or 6-3 decision against me after that argument. Quite apart from which side ultimately prevails, it will be interesting to see whether any single opinion commands 5 votes.

Mortimer Brezny said...

Roberts is clearly no fan of racial line-drawing by Gov'ts, and nothing in his questioning today suggested that he had suddenly become one.

Except he argued that racial line-drawing is mandated by the Hawaii constitution and the federal Constitution in Rice v. Cayetano.

And, you're ignoring the answers to those questions. The question isn't whether the Justices asked questions; it's whether they were combative and unrelenting and whether the answers were sufficient/satisfying.

I don't think the school districts gave bad answers to the Justices' questions, and I think the petitioners got really hostile questioning from conservative Justices, too. (Including Scalia.)

So I don't see the easy result that everyone else sees. I see four votes for the school district and possibly 5 votes against. But, if the opinion is written right, any of a certain 3 of those 5 could join the 4. You don't think Justices will flip to write the opinion? And you call yourself a court-watcher?

Harkonnendog said...

"You're complaining about court-ordered busing, but these cases are about a plan the cities adopted for themselves, pursuant to the local democratic process. The issue is whether the courts should intervene and deprive the majority of what it has decided it likes."

So:
1. The courts intervene, creating a law that thwarts the will of the majority.
2. The majority bend over and take it to avoid being sued.
3. The court cannot intervene because that might thwart the will of the majority. 'Cause they like it.

AWESOMENESS.

Anonymous said...

The schools' use of race is unconstitutional, since it is just racial balancing, which the Supreme court has repeatedly stated is unconstitutional.

Even if Grutter v. Bollinger (2003), permitting the use of race in admissions in higher education, does apply in the K-12 context -- contrary to Justice Kennedy's suggestion at oral argument -- the school districts' use of race should still be found unconstitutional, because the school districts are doing precisely what Grutter said race-conscious admissions policies could NOT do: racial balancing.

As the Supreme Court observed in Grutter v. Bollinger, 539 U.S. 306, 330 (2003), "racial balancing" is "patently unconstitutional."

Moreover, any observer who is not willfully blind -- even an observer who sympathizes with affirmative action -- would have to concede that the school districts are engaged in racial balancing. Many commentators who support affirmative action have admitted as much. And many court reporters have noted that the school districts are engaged in racial balancing. See, e.g., Charles Lane, "Court to Rule on Race-Conscious Assignment of Students to Public Schools," Washington Post, June 5, 2006, at A3 (in the Seattle and Jefferson County cases, "each [school district] seeks to maintain racial balance"); Linda Greenhouse, "Supreme Court Roundup; Court to Weigh Race As a Factor in School Rolls," New York Times, June 6, 2006, at A1 ("One difference between the Michigan decison [Grutter v. Bollinger] and the new cases is that . . . the [Seattle and Jefferson County] school districts are trying to maintain racial balance").

Moreover, Grutter held that race-based policies must have time limits. The Jefferson County policy has no time limit, making its position much weaker than if it were merely using race for a transition period after it became unitary.

And the Seattle Schools, while temporarily suspending their use of race after being sued, clearly want to return to race-based decisionmaking, and to do so permanently, without any time limit.

In their public statements, quoted extensively in the Competitive Enterprise Institute amicus brief, they have denigrated being "colorblind" and called the "concept" of a "melting pot" "unsuccessful," expressing ideological hostility to the idea of non-racial government decisionmaking, even though Justice Kennedy has observed for the Court that the Equal Protection Clause's "central mandate is racial neutrality in governmental decisionmaking."

They are not interested in colorblind decisionmaking, ever.

They are very much averse to treating people as individuals, rather than as members of competing racial groups. Indeed, the Seattle Schools have claimed that "individualism" is a form of "cultural racism," and have said that planning ahead ("future time orientation") is for whites only, and that only whites can be racists. Thus, they are firmly wedded to racial stereotypes and race-based classifications.

The concept of a melting pot is a valuable one, as Judge Kozinski has observed.

And if the school system pursued it through ways (even race-conscious ways) that do not involve racial classifications or racial preferences -- such as considering demographics in deciding where to site a school, so that its attendance zone would include plenty of both white students and minority students -- that would just fine.

But the Seattle School District is using racial classifications, and giving racial preferences, not just keeping the goal of a melting pot in mind.

Indeed, it has rejected the very concept of a melting pot, emphasizing that the school district's "intention is not . . . to continue unsuccessful concepts such as a melting pot."

Moreover, in practice, the Seattle Schools' use of race is so unthinking and rigidly mechanical that it actually aggravates racial imbalances in some schools, as the Center for Individual Rights amicus brief notes at pg. 7.

Thus, the Supreme Court should declare its use of race unconstitutional.

PatCA said...

As a layperson I can't really talk about the legal issues, but I do agree that these cases will probably be important forks in the road, because today racial balance means something entirely different than it did 60 years ago.

George Will here in this article talks more of the Seattle plan than the Louisville. (Wonder why, ahem.) It sounds horrifying and unbelievable-- until I remember a friend of mine who yanked her kid out of public school when the Venice CA school said she would be assigned to either an English- or Spanish-speaking class randomly because to place kids any other way would be discriminatory.

With all the Educational Leadership Ph.D. programs proliferating, we may have lots more of these suits.

Revenant said...

I just re-read the Fourteenth Amendment, and I don't see the word "colorblind" in it. What happened to the text?

The obvious implication of the governments of the USA being forbidden from "[denying] to any person within its jurisdiction the equal protection of the laws" is that no government may discriminate on the basis of race. That is both the literal and the intended meaning of the amendment.

"Colorblindness" is simply a shorthand way of referring to that requirement.

Atticus said...

Mark R said: "That might be, but are you suggesting that this is the reason to bus some other kids from far away to that unsafe neighborhood? Just because some neighborhoods in the city are unsafe, should all kids in the city be exposed to the risks? This is a crazy argument. The city should strive to make your daughter's friend's neightborhood safe enough to go to school, not make other kids subject to unsafe circumstances to compensate for its ineptness."

I am not suggesting that children be bussed to unsafe areas of town. Only an idiot--or a school board--would think that was a good idea.

Zeb Quinn said, "The utter failure of the public schools to bring black student performances up to the performance levels of other races, as manifested on standardized tests, despite 30 plus years of busing and quotas and all manner of other funded programs for the purported purpose of supposedly giving equal opportunities to all, is the elephant in the room nobody even looks at let alone brings up."

Absolutely. And such a noisy, messy elephant, too. The problem could be that districts are tracking "black student performance" instead of simply tracking student performance. Because records are kept based on skin color, and because districts are terrified of accusations of delivering poor education to black children, they refuse to talk about why some students fail. Instead of solving the problem where it is, they try to bring good students to the failing schools and hope that their habits and values spread. Sort of like trying to cure the flu by sitting next to healthy people.

Children do not fail at school because of the color of their skin.

Mortimer Brezny said...

The obvious implication of the governments of the USA being forbidden from "[denying] to any person within its jurisdiction the equal protection of the laws" is that no government may discriminate on the basis of race. That is both the literal and the intended meaning of the amendment.

The problem is: "What do you mean by discriminate?" Do you mean mere use of racial classifications? Well, then how do we take the census as is mandated by the Constitution, which specifically notes we've got to take into account those who are Native American and not living on reservations? How would we enforce the Thirteenth Amendment without taking stats on whether those badges and incidents have evaporated yet?

What does "equal protection" mean? Does it mean formal equality? Or does it mean substantive equality? Because "separate but equal" would seem to meet formal equality requirements.

"On the basis of" is also one of those vague prepositional terms like "in connection with" or "with regards to" or "relating to" -- it really could mean anything.

So it isn't clear what "colorblind" means at all: what kind of discrimination does it bar; what kind of equality does it provide; is the kind of equality it provides and the kind of discrimination is bars consistent with our Constitution?

That isn't so clear. If it were, this wouldn't be a close case. It can't be decided by a shorthand phrase, no matter how catchy.

I doubt this will be the lovefest conservatives are hoping for. And I'm not sure why conservatives want this decision, anyway. It would just energize Democrats and liberals for 2008.

Mortimer Brezny said...

On the relevance of John Roberts' argument in Rice v. Cayetano:

http://www.nytimes.com/aponline/us/AP-Hawaiian-School.html?ref=us