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?
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9 comments:
"Boy I hope those "gay marriage people" don't talk about gay marriage in this thread."
I think those "gay marriage people" already have. The nerve of those "gay marriage people" talking about their ... gay marriage people things.
Hey! Gay Marriage People! Stay off this thread!
"Then let's stay focused on affirmative action."
Let's! (and let's refrain from mentioning who brought up the gm people in the first place).
I've never been able to get too upset about affirmative action in theory or practice. But this is about early education so I'm not sure if AA is the real issue.
In theory I'm in favor of children going to school with people who are and aren't like them*.
How to do this equitably so that it's not a burden to anyone is complicated and I don't pretend to have many (any) answers.
*To date myself a little, I was in elementary school when the local schools were integrated. I'm very glad that happened. Seeing how the white teachers dealt with having black kids in class for the first time was very educational (so was the reaction of lots of people I thought I knew).
The Kozinski concurrence below (pp 53-59) is fascinating, arguing that robust rational basis (Cleburne-level) is what's appropriate here, and then says things like:
"It is difficult to deny the importance of teaching children, during their formative years, how to deal respectfully and collegially with peers of different races. Whether one would call this a compelling interest or merely a highly rational one strikes me as little more than semantics. The reality is that attitudes and patterns of interaction are developed early in life and, in a multicultural and diverse society such as ours, there is great value in developing the ability to interact successfully with individuals who are very different from oneself. It is important for the individual student, to be sure, but it is also
vitally important for us as a society. . . .
"When the Supreme Court does review the Seattle plan, or one like it, I hope the justices will give serious thought to bypassing strict—and almost always deadly—scrutiny, and adopt something more akin to rational basis review. Not only does a plan that promotes the mixing of races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials."
[L]et's refrain from mentioning who brought up the gm people in the first place.
Wait, I'm lost. Were we talking about genetically modified people?
The error starts by believing the state can solve the inherent tendency for people to form groups based on factors such as interest, wealth, appearance, or politics. It is this exclusivity that many Americans oppose.
While the concept is laudable, the state is simply unable to solve this human pattern, not without coercion that will not only be resisted, but result in unintended dysfunction.
Hence the balkanization of student identity groups in colleges, which do not enhance diversity, but instead solidify differences.
The biggest problem I see with Judge K.'s approach is that 'Local' can mean a county in Maryland with 1000 K-12 students, or Houston's Unifed School Disctrict with 1000 schools.
"The question is whether they should be able to enlist courts in the project of changing the policy produced by that democratic process."
Which to me explains the whole conservative resurgence. Yes, when the will of the people is wrong, use the courts, but now it's a strategy to use the courts if you think you're going to lose with the democratic process.
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.
Yep. Just read a selection of Southern newspaper editorials on education from say, 1954 to 1964, and you'll see there's a lot to be said for it. People in favor of discrimination based on skin color always want strict scrutiny to be kept far away from it, in favor of local control and local decisions.
It was surprising to see the SCOTUS take these two cases. When they ultimately get decided, I suspect they will turn on fine factual distinctions between these cases and Grutter. In Grutter, the Law School supposedly treated race as just one factor among many, it was all mushy and soft focus, etc. In these high school cases, at least from the summaries I saw today, race is used as the "tie breaker," when the school system has to pick between two otherwise indistinguishable candidates, and so by definition is the deciding factor. It seems clear that race was used in that way to maintain a pre-set level of "diversity." It sounds like these cases are getting awfully close to the "q" word.
The only real question is how Alito will vote -- like O'Connor (and if so, probably for stare decisis reasons) or like Roberts/Rehnquist? I suspect he will use some distinction in the facts to arrive at a different result from Grutter, but without overruling Grutter.
Perhaps part of the reason why the SCOTUS took these two cases is that they don't have enough in terms of caseload to fill up next fall's argument calendar. After all, they are a court, and the business of courts is to decide cases. Perhaps someone noticed that they were low on their inventory of raw materials -- they haven't granted cert in enough cases to keep themselves busy next fall!
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