Why the Supreme Court Is Right to Be Skeptical of Race-Based Assignment Systems For Public School Students

By DOUGLAS KMIEC

Wednesday, Dec. 06, 2006

Read more about Parents Involved in Comty. Sch. v. Seattle Sch. Dist. and Meredith v. Jefferson County Bd. of Educ., including the questions presented, the merits briefs, the docket, and related information at FindLaw's Supreme Court Center. Ed.

Recently, the Supreme Court held oral argument in two Equal Protection cases, coming from school districts in Seattle and Louisville. In both cases, the Supreme Court will have to decide whether it is ever appropriate for public officials to use race for the purpose of deciding which pupils will be assigned to the most highly-desired schools in a given district.

The Supreme Court has long made plain - for instance, in Miller v. Johnson -- that "the central mandate of the equal protection clause is racial neutrality in governmental decision-making." Accordingly, it's no surprise that the Justices' questions to the attorneys defending this blatantly race-based program were quite demanding.

Justice Anthony Kennedy was among those expressing deep skepticism about Seattle's program. The school district seems to be telling its students that "everybody can get a meal," but only certain people can get "dessert," Kennedy said - which is plainly unfair. The Court's questions indicated that it's inclined to strike down these programs, and it should do so.

The Broad, Radical Arguments the School Districts Presented to the Court

The arguments made on behalf of racial balancing were more sweeping and radical than those made on behalf of any previous claim that it is constitutional to use race in public decisionmaking. The advocates of the use of the so-called "racial tiebreaker" and other like devices in student assignment seek perfectly-integrated neighborhood schools. But this may or may not be everyone's cultural ideal.

After all, we still applaud singular racial and ethnic achievement: Many people are very proud of breaking barriers, of being the first Hispanic-, or Polish-, or African- or Irish-American to claim a particular achievement as his or her own. Moreover, it is still commonplace for families to select neighborhoods that reflect their personal interests, which in the freedom of American society, may include interests in group identity, social class status, religion, and/or ethnicity. As one well-known sociologist put it, "Religion and ethnicity are essential parts of our lives, and government should not detail how we express them in the private sphere."

Notwithstanding ethnic and racial pride, which is understandable enough, for many, a world where race is simply irrelevant, in both public and private decisionmaking, is the ultimate objective. Ethnicity and the like meant more to my great-grandfather, the first in our family to emigrate to the United States, than it means to my father or to me and my children. The melting pot is still a cultural ideal for many, and a school board's conception of what constitutes an appropriate racial balance, may well be part of that. As Justice Kennedy again observed, it can be conceded that the school board desires only the common good. But here is the key point: A cultural ideal cannot be attained by sacrificing constitutional principle.

Even if a Melting Pot Is Ideal, the Government Cannot Constitutionally Turn Up the Heat

In particular, the pursuit of the ideal cannot be accomplished by government force. Indeed, according to Supreme Court precedent, government force - the compelled use of race - is permissible only in two situations: When it is designed to rectify the harm of prior discrimination, and in the context of public higher education, where the Court has held that consideration of race can be one of many factors in an admissions decision in order to secure diversity of viewpoint. Neither of these situations exists in the pupil assignment cases.

First, the schools in these cases either have never engaged in prior discrimination (Seattle) or have long since given up that odious practice, and have been found by the federal courts to be "unitary" (Louisville). Thus, the compelled use of race cannot be justified as a required constitutional remedy.

Second, the small constitutional allowance for using race as one of many considerations in public university admissions simply does not apply here. Some of the Justices, most notably Justice Ginsburg, pointed out that public elementary and secondary schools - unlike universities -- generally do not depend on selective, competitive admissions. ("Magnet" schools are an obvious exception, but is the pursuit of the most highly desired schools in these cases really different? The racially-excluded parents and their children in Louisville and Seattle surely must feel they lost in competition.) Oddly, even if one indulges Justice Ginsburg's premise that the selection practices in these two cases do not constitute a competition, this is not a fact that should give greater latitude to public elementary and secondary schools, but just the opposite.

As the Supreme Court held in 2003, in Grutter v. Bollinger, when it upheld the limited use of race by an elite public university, "it would be a sad day indeed for America to become a quota-ridden society, with each identifiable minority assigned proportional representation . . . ." But that is exactly what race-base pupil assignment systems contemplate. The idea, after all, isn't to foster diversity, but simply to mirror the racial composition of the district in each individual school.

These Cases Can't Be Convincingly Likened to Brown and Its Progeny

In the end, likening the present cases to the school desegregation landmarks is unpersuasive. The present matters are simply not a logical extension of the Court's 1954 decision in Brown v. Board of Education, or of Brown's progeny.

The school desegregation cases necessarily depended upon a finding of de jure - by law - segregation. The pupil assignment cases are purely about de facto - factual - segregation. To fail to see the difference between that which is compelled, and that which is chosen, is to fail to appreciate both human freedom and the limits of the law. However regrettable the continued social patterns that often divide us by race may be, to accept the use of race in public decisionmaking for the indefinite future is merely to cement those divisions, not to erase them.

The Court Should Avoid a Jurisprudence of Racial Stereotype

Public school racial balancing does not just harm white or non-minority students. As disclosed in the briefing and oral argument, while the vast majority of excluded students were white, there were also an abundance of excluded minority students to reach the desired racial percentages sought by school officials. Are individual white or African-American public school students really better off being transported all over the district just so school officials can proclaim "balance achieved"?

Too often, the implicit premise is that minority students can only receive a proper education when they are in the presence of whites. As Justice Thomas, the Court's only African-American member, once observed in his concurrence in Missouri v. Jenkins, this is "a jurisprudence based upon a theory of black inferiority." It is certainly a jurisprudence based on stereotype. Seattle, for example, lumps together as fungible "minority," African-Americans, Asians, Latinos and Native Americans. Even worse, if a student in registration materials declines to identify his or her race as a matter of principle, the school district engages in "visual inspection." It seems diversity has more to do with skin pigment than anything else.

The justices were appropriately skeptical of the school districts' systems. Unfortunately, they may also be divided as to these systems' constitutionality. Can Chief Justice Roberts, given his commitment to collegiality and consensus, move the court from a five-four split, to the six-three or seven-two split needed to express firmly that public decisions ought not to depend on race?

For the Chief Justice to build consensus, he will need to remind his court of the importance of a colorblind Constitution, even in a world that still too frequently supplies examples of racial intolerance or ignorance, like that of Michael Richards on a comedy stage, or in the lunchrooms of the LAFD. Racism is neither funny nor excusable. But this much should be clear: racism is also not alleviated by greater public reliance upon race.


Douglas W. Kmiec is the Chair and Professor of Constitutional Law at Pepperdine University. He is also the former constitutional legal counsel to Presidents Reagan and George H. W. Bush.

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