One indication of the new post-Grutter lay of the land comes from Washignton state (via the indispensable email hidden; JavaScript is required">AADAP listserv).
In an 8-1 ruling, the state supreme court held that taking race into account in school assignments does not violate Initiative 200, the voter-approved law that banned all racial preferences.
The majority found the policy is race-neutral because in some cases the system chooses a minority student and in others favors a white student.
“The school district’s open choice plan does not discriminate against, or
grant preferential treatment to, any individual or group on the basis of
race, sex, color, ethnicity, or national origin as meant by law,” Justice
Tom Chambers wrote. “To the extent the tiebreaker is race-conscious, it
furthers a core mission of public education; to make available an equal,
uniform and enriching educational environment to all students within the
district.”
The lone dissenter was not impressed.
“The fact the procedure may provide preferential treatment to one race in one instance and to another in a subsequent instance does not render it racially neutral, but rather unlawful in both instances,” [Justice Richard] Sanders wrote.
The case now goes back to the 9th Circuit, which had blocked the policy pending the state court’s ruling on state law.
I suspect we’ll see more rulings like this one. It reminds me of one strand of the old Southern defenses of racial discrimination, which is that, say, anti-miscegenation laws were not discriminatory because they affected both races equally.
