A Thought On The Pending Racial School Assignment Cases: “Individual Review” Of … What?

In his separate opinion in Grutter, Justice Scalia wrote:

The “educational benefit” that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of “‘cross-racial understanding,’” ante, at 18, and “’better prepar[ation of] students for an increasingly diverse workforce and society,’” ibid., all of which is necessary not only for work, but also for good “citizenship,” ante, at 19. This is not, of course, an “educational benefit” on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law–essentially the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an “educational benefit” at all, it is surely not one that is either uniquely relevant to law school or uniquely “teachable” in a formal educational setting. And therefore: If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a “critical mass” that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate–indeed, particularly appropriate–for the civil service system of the State of Michigan to do so. There, also, those exposed to “critical masses” of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized–indeed, should be praised–if they also “teach” good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.

Justice Scalia may have thought he was being faceitous, but in fact he was accurately predicting the future. The defendant school boards in the pending racial school assignment cases from Seattle and Louisville that the Supremes will hear this term are making precisely the argument Scalia predicted they (and others like them) would.

In his scathing dissent, Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, was particularly, harshly (which is to say, persuasively) critical of the University of Michigan’s argument that it was necessary to discriminate against some applicants based on their race or ethnicity in order to create a “critical mass” of students from other races or ethnicities. Asking, among other things, why there was no comparable effort to create a “critical mass” of Hispanics or Native Americans, only blacks, Rehnquist acerbically concluded:

The Law School claims it must take the steps it does to achieve a “‘critical mass’” of underrepresented minority students…. But its actual program bears no relation to this asserted goal. Stripped of its “critical mass” veil, the Law School’s program is revealed as a naked effort to achieve racial balancing.

Justice Scalia echoed this point in his separate dissent:

The admissions statistics show [the “critical mass” argument] to be a sham to cover a scheme of racially proportionate admissions.

In his separate dissent, Justice Kennedy concentrated on another aspect of the “critical mass” argument that, I think, has particular relevance to the K-12 school assignment issue. He insists that, if race is to be used at all in university admissions, it must be used in the severely proscribed manner laid out by Justice Powell in Bakke, as only “one of many factors,” and that this narrow use must be confirmed by vigorous judicial review employing very strict scrutiny.

The dissenting opinion by The Chief Justice, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas. An effort to achieve racial balance among the minorities the school seeks to attract is, by the Court’s own admission, “patently unconstitutional.” Ante, at 17; see also Bakke, 438 U.S, at 307 (opinion of Powell, J.). It remains to point out how critical mass becomes inconsistent with individual consideration in some more specific aspects of the admissions process.

And he then does proceed to demonstrate how the implementation of race preferences to produce a “critical mass” of (some) minorities makes the essential “individual review” of each applicant impossible. For example:

About 80 to 85 percent of the places in the entering class are given to applicants in the upper range of Law School Admissions Test scores and grades. An applicant with these credentials likely will be admitted without consideration of race or ethnicity. With respect to the remaining 15 to 20 percent of the seats, race is likely outcome determinative for many members of minority groups. That is where the competition becomes tight and where any given applicant’s chance of admission is far smaller if he or she lacks minority status. At this point the numerical concept of critical mass has the real potential to compromise individual review.

The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass.

Noting that the percentage of minorities admitted varied hardly at all over the years under review, Kennedy concluded that

[t]he narrow fluctuation band raises an inference that the Law School subverted individual determination, and strict scrutiny requires the Law School to overcome the inference. Whether the objective of critical mass “is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status,” and so risks compromising individual assessment. Bakke, 438 U.S., at 289 (opinion of Powell, J.).

In short, the sham that is of primary importance to Justice Kennedy (widely said, as here, to be the new swing vote on the Court) is that the determination to create a “critical mass,” whether viewed as a quota or a goal, makes a mockery of the “individual review” of each candidate that is necessary in order to ensure that racial preferences as implemented are distinguishable from clearly unconstitutional, unadulterated racial balancing.

Now, here’s the relevance I see to the K-12 racial assignment cases: in the university and professional school context, applicants have a record — transcripts, grades, test scores, recommendations, etc. — that can be reviewed. But when a high school or middle school or elementary school student applies to attend a particular school, what would be the focus of any “individual review” conducted by the local school board, assuming for the sake of argument that the board even undertook such a review?

In short, the “diversity” claimed by Seattle and Louisville as a justification for its racial discrimination consists of nothing other than race. I believe (as, apparently, did Rehnquist, Scalia, Kennedy, and Thomas) that was true at University of Michigan Law School as well, but here there is not even the possibility of a charade of “individual review” of each applicant to disguise that fact since there is nothing of substance to review other than the race of the applicants.

UPDATE [3 October]

In a column in today’s Wall Street Journal, Prof. John McGinnis of the Northwestern University law school is quoted as saying that

“the best way to appeal to Kennedy is to quote his own opinions back to him.” That isn’t just an appeal to the justice’s “vanity, but also to their sense of continuity,” he says.

Apparently the Bush administration agrees. Opposing the practice of assigning students to schools based on their race, its brief in the Seattle and Louisville cases

cited Justice Kennedy by name 13 times in its friend-of-the-court briefs, zeroing in on his Michigan dissent. The briefs cite only one other sitting justice by name: Clarence Thomas, twice.

Let’s hope that Justice Kennedy, in the Seattle and Louisville cases, agrees with Justice Kennedy in the Michigan cases. If so, he will become a more refreshing “swing vote” than Justice O’Connor was in that role, since her earlier opinions were no more useful than any other text as a guide to her later opinions.

Say What?