Busing Without (For Now?) The Buses

A few days ago I noted (here) that the Supremes have agreed to consider the question of whether local school boards can “consider” race in assigning students.

Now comes the Washington Post, in an editorial on “Considering Race,” with a command to the Court from elite media central:

The justices must avoid adopting a hard rule that demands that school districts act in a race-blind fashion.

WaPo’s argument confirms the prediction of Grutter critics who warned that decision, ostensibly limited to carefully crafted plans in higher education, threatened to open the flood gates of racial preferences everywhere.

Government-sponsored racial classifications are always disquieting in a society committed to equal protection under law. But the Supreme Court recently upheld carefully crafted affirmative action programs in higher education in the name of diversity. If that’s a compelling goal for university administrators — and we think it is — how much more compelling is it for city officials dealing with younger students still learning about life in a multiethnic society. What’s more, the Louisville plan largely mimics the court-ordered desegregation plan that the city was under for years to remedy past discrimination. It cannot be that steps the city was compelled to take to comply with the 14th Amendment now violate that same amendment if continued voluntarily.

Yes, it can, if the “steps the city was compelled to take to comply with the 14th Amendment” actually violated the properly interpreted 14th Amendment. Moreover, if “diversity” is all-important, why rely on student choice to achieve it? If an insufficient number of students choose to attend the right schools to reach the acceptable level of “diversity,” shouldn’t the school boards simply assign by race and then provide the buses? Oh wait, we’ve been there and done that….

The most interesting argument in favor of the school districts’ right to take race into account was presented by 9th Circuit judge Alex Kozinski (perhaps the most interesting and creative conservative jurist now on any appellate court) in a concurring opinion in the Seattle case, quoted approvingly in the WaPo’s editorial:

… as conservative Judge Alex Kozinski wrote in a thoughtful concurrence to the decision by the Court of Appeals for the 9th Circuit upholding the Seattle plan, there’s a mismatch between the Supreme Court’s case law and the issue these programs pose. They are not designed to oppress African Americans; nor are they designed, like affirmative action programs, to give them a leg up. Rather, the Seattle program uses race as one of several tiebreakers when too many children of any one race want to go to the same school. Such “stirring of the melting pot,” in Judge Kozinski’s words, seems profoundly different from programs that consider race in the allocation of government benefits or harms. Judge Kozinski plausibly asks whether, given this, the courts should even apply a traditionally rigorous equal-protection standard or whether they should instead treat the matter as one where deference to local government officials makes sense.

Interesting, but not convincing. First, allowing the consideration of race only as a “tiebreaker” invites unending litigation every time an aggrieved party believes that there was not really a tie, that race was given impermissible weight. More fundamental, however, is the question of whether a student’s choice of school is really “profoundly different” from “allocation of [other] government benefits or harms.”

Who says? Are Judge Kozinski or the editors of the Washington Post or five Supreme Court justices in a position to say that a student’s choice of school is less important, less of a benefit or burden distributed by government, than, say, whether a minority subcontractor who did not submit the low bid should receive a contract to supply widgets to a county office? Indeed, if race can be considered any time there is no intent to give one race “a leg up,” then any separate but equal segregation that had no racial animus would pass the WaPo’s new lenient standard.

The WaPo is concerned, properly, with students “learning about life in a multiethnic society,” with helping “children of diverse backgrounds learn to live, play and eventually work together.” Unfortunately, however, its preferred lesson plan is not only outmoded but offensive. The lesson our schools should be teaching is that race should never be weighed — even as a hypothetical “tiebreaker” — on the scales of any government decision, because race should never be allowed to count for or against any person for any opportunity in our society.

UPDATE

Also quoting Judge Kozinski and “Chief Judge Michael Boudin of the United States Court of Appeals for the First Circuit, another Republican judge,” Jeffrey Rosen weighs in on this issue in today’s New York Times Week in Review, noting with obvious satisfaction that

[t]he unexpected fissures among conservatives about how colorblind the Constitution should be suggest that certain forms of affirmative action might be more acceptable to conservatives than liberals had feared.

Rosen refers to Judge Kozinski quoting Judge Boudin,

who upheld the use of racial balancing in a Massachusetts school choice plan. Unlike “modern affirmative action,” Judge Boudin had written, these plans do not “seek to give one racial group an edge over another.”

The argument here, to repeat, is that racial preferences that neither derive from nor contribute to racial stigma and that do not “seek to give one racial group an edge over another” are acceptable. And, still repeating, I continue to find this argument troubling. For one thing, it substitutes harm to a “racial group” over the traditional, and much more appealing, standard of harm to the individual.

Consider, for example, this hypothetical: what if the federal government or a city, in the interest of governmental economy and efficiency, decided that rather than close down government altogether on certain holidays that it would institute a policy of “race-conscious holidays.” Under this policy, blacks would be excused from work only on Martin Luther King’s birthday, whites only on Presidents’ Day, and Asians and Hispanics only on newly created ethnic holidays. In order to avoid the appearance of hard racial classification, employees would be allowed to substitute one of the “other” holidays for their own racially designated one if they chose.

Would this pass the proposed no stigma/no “racial group” harm test? Or, as I’ve suggested here before, what if our immigration policy were revised to eliminate or severely restrict the number of visas awarded to Hispanics because they are “overrepresented” in our immigrant population?

But we need not be hypothetical. I assume that if the Supremes were to approve the racial school assignment policies when the Louisville and Seattle cases are considered that would have the effect of reversing decisions such as the ones in the Fourth Circuit I discussed here some time ago. Quoting (extensively) from that post:

In two recent cases the Fourth Circuit invalidated diversity-based racial assignment policies, one in Arlington County, Virginia (Tuttle v. Arlington County School Board, 195 F.3d 698 [4th Cir. 1999]), and the other in Montgomery County, Maryland (Eisenberg v. Montgomery County, F.3d 123 [4th Cir. 1999], cert. denied, 529 U.S. 1019 [2000]). In Eisenberg, a white student was denied a transfer to a math and science magnet program because allowing him to leave his current school would have a negative “impact on diversity.” The county created a “diversity profile” of each school, and transfers were routinely denied on the basis of race in order to maintain “diversity.” Revealingly, the county argued that this wasn’t discriminatory because it was common practice to deny transfers for racial reasons to students of all races when the requested transfer would have a negative “impact on diversity.” The Fourth Circuit disagreed, saying that a policy did not cease to be racially discriminatory simply because it was practiced against all races. The court concluded that the county’s policy of promoting diversity by carefully regulating transfers on the basis of race was “mere racial balancing in a pure form.”

An even more revealing case had erupted in bitter controversy in Montgomery County in 1995 when the school board prevented two Asian-American kindergartners from transferring to a one-of-a-kind county French immersion program because of their race. According to a Washington Post article,

The parents of Eleanor Glewwe and Hana Maruyama had sought to enroll the girls in a French immersion program at Maryvale Elementary School in Rockville. But school officials denied their requests, saying their departure from Takoma Park would further deplete the number of Asian students there. [Sept. 14, 1995, p. A1]

One of the parents told the board that there were no more Asians in the school where her daughter wanted to transfer than there were where she was enrolled and thus that allowing her to transfer would not have any negative impact on diversity. Paul L. Vance, the Superintendent, replied to the board, according to the WPost, “that nothing in the school system’s policy permits ‘robbing Peter to pay Paul’ by hurting the diversity of one school to help it at another.” [Sept. 1, 1995, p. B1]. Public outcry eventaully caused the board to relent.

One other Maryland episode was even more bizarre. The writer Ted Gup wanted a transfer for his adopted son, who was born in Korea. He was currently enrolled in a school that was divided between a Spanish immersion program, which had predominantly white students, and an English program that was 90% minority, including large numbers for whom English was a second language. Gup wanted his son in an English program with native English speakers. The transfer was denied because — you guessed it — there weren’t enough Asians at his school and thus allowing his son to leave would have a “negative impact on diversity.”

The Clinton administration vigorously defended race-based school assignments, filing briefs supporting policies that the Fourth Circuit rejected. If the Supremes give the green light to racial school assignment we can be sure that more of the idiocy of Montgomery County’s holding school students hostage based on their race will be unleashed.

It is true, as defenders of racial assignment argue, that students do not have a right to attend a school of their choice. But it is not true (or should not be) that their choice can be denied because of their race.

UPDATE II [12 June]

Writing on RealClearPolitics this morning, Peter Brown, assistant director of the Quinnipiac University Polling Institute, suggests that the opinion in the racial school assignment case “could begin a major change in racial/social policy in the United States.”

I hope he’s right.