Writes Linda Greenhouse of the racial balancing cases argued yesterday:
Before the arguments on Monday, the challenge for the school board lawyers defending the plans, along with their allies in the civil rights community, had appeared to be to persuade the justices that the appropriate analogy was not to affirmative action, a freighted subject for the court in which benefits are bestowed on one group and withheld from another, but rather to integration, in which the goal is to educate everyone as equally as possible.
But by the end of the tense two hours of argument, that effort had not so much failed as it had become irrelevant. Lawyers for the school systems found themselves struggling, under the justices’ questioning, to meet the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education.
Is it really so hopeless for the school districts? What did Justice Kennedy say?
While his questions suggested that he would not rule out any and all policies undertaken with a knowledge of the probable racial consequences, Justice Kennedy made clear his distaste for the policies at issue in these cases, Parents Involved in Community Schools v. Seattle School District, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.
To Mr. Madden, the Seattle district’s lawyer, Justice Kennedy said that unlike magnet schools, special resources, or school location decisions, “you’re characterizing each student by reason of the color of his or her skin.”
He continued: “That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.”
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It would be crazy to imagine a time where the government did not discriminate based on race or color. Why is it that the Democratic party is always opposed to this - either with their support of Slavery antebellum, or their support of affirmative action and quotas today.
Some discrimination is OK--favoring those with disabilities in some circumstances, for example.
But race is such a hypercharged issue for us, an issue with such a terrible history, that it has always seemed a better rule just to stay away from it and let the government be color blind. The Constitution easily permits, if not encourages, that interpretation.
I liked the "last resort" comment from Justice Kennedy and hope that view guides the decision.
Slightly different take from the local Seattle paper:
http://seattletimes.nwsource.com/html/localnews/2003462233_supremecourt05m.html
The twenty minutes I listened did not indicate blanket hostility to the programs. They pretty much grilled the lawyer for the parents' group (incl. Justice Scalia).
Of course, we will likely end up with something muddled.
I cannot imagine the Court saying that diversity is not a laudable and permissible goal. The key will be how to get there. Again leaving school districts to guess, speculate, obfuscate, etc.
This IMO was telling:
[We're not writing just on a very fact-specific issue, " Kennedy said, and then jumped to the heart of the overarching philosophical and legal issue:
"Assuming some race-conscious measures are permissible to have diversity, isn't it odd to say you can't use race as a means?" he said.
That concern was echoed later by Justices Ruth Bader Ginsburg and David Souter, who repeatedly asked why, if racial diversity in education is an acceptable goal, using racial means to that end is not.
Ginsburg quoted an earlier appeals-court decision: " 'The choice is between openly using race as a criterion or concealing it through some clumsy or proxy device.'
"It's very hard for me to see how you can have a racial objective but a nonracial means to get there," she said.]
I wonder if Greenhouse has ever described questioning from the court's liberal Justices as "hostile." Maybe so--I don't often read her--but it seems an odd choice for describing the give and take of oral argument. That is, unless her goal is to reinforce the notion that the conservative justices are hostile to "the civil rights community," whatever that is.
Also amusing was the prediction that a ruling against the plans would force hundreds of "voluntary integration plans" to be "scrapped." To clarify, if the plans were really voluntary, there wouldn't be any lawsuits. The problem is that the school boards have taken it upon themselves to decide the proper degree of racial balance in taxpayer funded schools. Compliance with the racial quotas established by such plans is not voluntary.
So, we have state action forcing students into boxes based upon their skin color. And the people pushing this scheme get to claim the title "civil rights community."
George Will made this comment today about the Seattle School Baord
When registering children for high school, parents were asked to specify each child's race. If parents did not specify, the district did so based on visual inspection of the parents' or child's pigmentation. The school board president has said "skin tone matters."
How outrageous. The liberals who support this stuff are the scourge of our society.
George Will also pointed out in his Washington Post editorial on December 3 that the Seattle School District's bizarre racial statements, such as claiming that "individualism" is a form of "cultural racism," and that it is racist to expect non-whites to plan ahead the way whites do.
The Seattle Schools aren't interested in using race as a temporary measure to promote a melting pot; they want to use race forever to promote political correctness.
As the Supreme Court observed in Grutter v. Bollinger, 539 U.S. 306, 330 (2003), "racial balancing" is "patently unconstitutional."
Any observer who is not willfully blind would have to concede that the school districts are engaged in racial balancing. Even many pro-affirmative action 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, the Supreme Court's Grutter decision held that race-based policies must have time limits. The Jefferson County race-based assignment 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.
Similarly, 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, 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 in Miller v. Johnson (1995) that the Equal Protection Clause's "central mandate is racial neutrality in governmental decisionmaking."
Seattle School officials 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, their bizarre claims (that "individualism" is a form of "cultural racism," that planning ahead is for whites only, and that only whites can be racists) show they are are firmly wedded to racial stereotypes and race-based classifications.
The concept of a melting pot is valid. 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, declaring that the Seattle Schools' "intention is not . . . to continue unsuccessful concepts such as a melting pot."
Fighting racial discrimination by preemptively discriminating on the basis of race, is like preventing suicide by having a friend shoot you in the head first.
I accidentally watched last night after the Iggles victory over the Panthers.
I found it fascinating to watch the fast-thinking and enormous SCOTUS brainpower grill the school attorney. Would not want to be in his seat.
Jeff said:
"I wonder if Greenhouse has ever described questioning from the court's liberal Justices as "hostile." Maybe so--I don't often read her--but it seems an odd choice for describing the give and take of oral argument. That is, unless her goal is to reinforce the notion that the conservative justices are hostile to "the civil rights community," whatever that is. ""
I agree with you Jeff. It's like Rush has said- "the media wrote story after story after story pondering what the Dems had to do to take back the Congress and/or the White House" but the media won't write the same number of stories asking what the Reps have to do to take back the Congress.
Greenhouse wrote:
"the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education."
(emphasis added) That's a peculiar word to insert there. Just saying that counsel struggled to explain why "the plans should be seen as something different from the segregation that the court struck down in Brown" would convey what the court did in Brown - so what's the purpose of the seemingly surplus "intentional"? I can't really elicidate why that strikes me as being so jarring, but I can't shake the feeling that Greenhouse is looking for a way to convey is that in Brown, the court struck down bad classification by race, and in these cases, Greenhouse wants to the court to uphold good classification by race.
I could never figure out what the protestors at SC hearings hope to achieve. They get all of 5 seconds of media coverage and 94.3% of the general population has no clue as to what the SC is addressing.
I can't really elicidate why that strikes me as being so jarring, but I can't shake the feeling that Greenhouse is looking for a way
I actually have excorriated Greenhouse numerous times, but I think she's just compressing an accurate read of the arguments presented at court. There was a bit of a dust-up over the intentional/stigmatizing versus incidental/harmless "discrimination".
Simon focuses on Greenhouse's phrase "the intentional segregation that the court struck down in Brown v. Board of Education," and suggests that it's an odd choice of words. He speculates that she was trying to draw a line between benign and malign forms of racial classification. Unlike Simon, I think Greenhouse is just picking up on questions (comments, really) by Souter and Scalia during yesterday's arguments.
During one of the arguments, Scalia made a point of asking the petitioner's attorney why he had agreed with another justice's statement to the effect that the case involves an effort to avoid the re-segregation of the public schools. As Scalia made clear, his point was that segregation, as a legal concept, always involves the intention to separate by race. Since no one claims that there was any such intent to separate by race here, the City's racial balancing scheme couldn't be justified as an effort to remedy the wrong of "segregation." Instead these cases turned on whether racial balancing as a governmental goal could be justified by differentiating students on the grounds of race and then making pupil assignments on that basis. I thought it was quite clear how Scalia (and a majority of the court) would answer that question if that is ultimately how the Court frames the issue for decision. and Petitioner's attorney had the sense to quickly agree with Scalia that he had misspoken earlier in his argument.
In contrast, Souter explicitly made the argument that Simon thinks Greenhouse is merely suggesting. During the Seattle case, he consistently made the point that the 14th Amendment was intended to prohibit any efforts to exclude or stigmatize the freed slaves, and thus must be construed with that purpose in mind. According to Souter, that requires that the Court differentiate between benign and malign forms of racial classifications, determined basically by a purpose-and-effects test focusing on the impact on the racial minority in play. It was interesting that Kennedy was the justice who most clearly rejected Souter's approach -- by making the point that Kennedy has made in prior cases, to the effect that the 14th Amendment requires the Gov't to treat individuals on their own merits, and not merely as members of racial classes. Kennedy also made the obvious point that, in every case where racial classifications are used by Gov't for any purpose, there is a winner and a loser. Thus, "benign" and "malign" are strange categories to apply in interpreting a constitutional text that seeks to achieve its purpose of ending all badges of slavery by the means of a command that "no State shall ... deny to any person within its jurisdiction the equal protection of the laws."
I also think Greenhouse is right about the likely outcome. Several of us posted comments yesterday in response to Ann's post suggesting that she thought that Seattle and Louisville were likely to prevail. I'd be interested to know whether Ann has changed her view.
The concept of a melting pot is valid.
It seems debatable whether it's valid for African-Americans, or at least that it's as valid as it is for, say, Italian-Americans.
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.
And if the new school district goes from white/minority mix to mostly minority over the next, say, ten years, what's your next step? Demographics aren't necessarily static.
I don't mean to be snarky here... I don't think you can think about government imposed racial quotas for public schools without also thinking about de facto residential segregation by race.
Mort, unfortunately, Greenhouse has done little to build up the kind of good faith reserve that makes one give her the benefit of the doubt, but I'm willing to concede your and Richard's comments.
jeff_d said...
"I wonder if Greenhouse has ever described questioning from the court's liberal Justices as 'hostile.'"
I don't know - but the reliablyl similarly-inclined Dahlia today characterizes Justice Souter's questioning as "bombastic." I have a hard time imagining anyone has ever accused Justice Souter of that before.
Actually, Simon, there was quite a popular Shaggy song about Justice Souter that called him just that.
http://www.amazon.com/Boombastic-Shaggy/dp/B000000W7B
On the relevance of John Roberts' argument in Rice v. Cayetano: http://www.nytimes.com/aponline/us/AP-Hawaiian-School.html?ref=us
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