In a predictable outpouring of support for racial classification and racial assignment of school students, the educational establishment and its allies among the old line “civil rights” organizations have filed amicus briefs with the Supreme Court supporting the Seattle and Louisville school districts’ racial student assignment policies.
550 or so social scientists (many from education schools and a few historians who one frequently finds signing petitions, briefs, etc.) have signed on to a brief filed by the Civil Rights Project at Harvard that one has to read carefully, and then re-read, to confirm that it is not a brief in support of that organization’s favorite racial tool, cross-town busing. The brief, like many such arguments, sings the praises of the end, “integration,” so loudly that it is easy to lose sight of the means it endorses, racial classification assignment. As the press release accompanying the brief states,
“This extraordinary outpouring of intellectual support for the goal of integrated education reflects a deepening understanding of the need for positive policies to deal with the racial transformation of American society,” states Gary Orfield, director of The Civil Rights Project and professor of education at the Harvard Graduate School of Education.
I have not read all the opposition briefs yet (see, however, here, here, here, here, and here), but I’m confident not one of them, or their authors, oppose “integration.” What they oppose is discrimination on the basis of race to achieve it.
I must say that I also find something circularly self-serving about the briefs from higher education organizations supporting school-age racial preference. Colleges that are now committed to race-based admission want their choice validated, and they require feeder schools to provide them with students already experienced in the world of racial preference. As quoted in the Chronicle of Higher Education article linked in the first paragraph above:
The brief submitted by the former University of California chancellors argues that a Supreme Court decision striking down race-conscious school admissions policies would impede efforts to make enrollments more diverse at selective colleges.
In a similar vein,
The American Council on Education’s brief argues that the Supreme Court should show the educational judgments of the Seattle and Jefferson County, Ky., school districts the same deference that it showed toward higher education in the University of Michigan cases and in its other landmark ruling on affirmative action in college admissions, the University of California Board of Regents v. Bakke decision of 1978. The council’s brief asserts that students who attend diverse elementary and secondary schools “are better prepared for the demands of higher education and are more likely to attend desegregated colleges,” in addition to being better able to understand the falsity of stereotypes and having “a greater sense of civic and political engagement.”
The “deference” argument is transparently disengenuous. Would the ACE favor similar “deference” to a local school board that racially assigned students in a manner to reduce rather than increase “diversity” because it found “diversity” increased conflict and interfered with its educational mission? Would it really favor “a greater sense of civil and political engagement” if that activism led to opposition to race-based decision making?
But one can readily understand why a higher education establishment steeped in the virtues of racial preference want to be presented with applicants already well-schooled in that orthodoxy before they arrive on college doorsteps. After all, if public schools all over the country were required to treat their students “without regard” to race, that equality might become addictive and habit-forming, and the colleges would then have to spend considerable effort re-educating them into the proper kind of “civil and political engagement.”
One sure hopes the Asian American Legal Foundation files an amicus brief. The AALF filed an amicus brief in support of Barbara Grutter that deserves serious discussion in these current Supreme Court diversity cases. The AALF brief and its account of the case of Ho v. San Francisco Unified School District, 147 F.3d 854 (9thCir. 1998); Ho, 59 F.Supp. 2d 1021(N.D.Cal. 1999) (approving settlement) presages by seven or eight years the current issue before the court.
Pre-Grutter, voluntary school integration policies that considered race explicitly were often struck down in federal courts. Ho was one of these cases.
The school district’s voluntary integration policy in Ho divided students into thirteen racial/ethnic categories and mandated express race balancing among the student bodies. For instance, under the policy no racial/ethnic group could constitute more than 45% of the student enrollment at any regular school.
Chinese Americans had become the largest identifiable ethnic group in San Francisco, and they were disproportionately burdened under the policy. In some heavily Chinese neighborhoods, young children were forced to attend schools far from their homes to satisfy the 45% requirement. Lowell High School, one of the best high schools in the country, admitted students through a competitive magnet admissions policy. Under the 40% cap, this policy operated as a quota ceiling; capping enrollment for Chinese-American students. Plaintiff Ho and other Chinese-American students who were turned away from their preferred schools because of the racial cap challenged the policy. The Ninth Circuit eventually placed the burden on the school district to prove a remedial interest. With the courts unwilling to recognize diversity as a compelling interest, (the Ninth Circuit ?!!?) the school district settled on the first day of trial, eliminating the use of race.
Fascinating case and outcome that deserves revisiting in the context of Grutter and the current issues before the court.
The amicus briefs filed in support of the school districts’ use of race erroneously argue that the school districts are entitled to deference based either on the Grutter v. Bollinger decision, or, alternatively, pursuant to a tradition of leaving school districts free of judicial oversight in how they treat their students.
Neither contention is persuasive, and as Justice Kennedy observed in Grutter itself, deference is antithetical to the very concept of strict scrutiny.
More recently, in Johnson v. California, 543 U.S. 499 (2005), the Supreme Court recognized that deference and strict scrutiny were incompatible.
Accordingly, the Court in Johnson expressly refused to defer to a prison as to the need for racial classifications even though it conceded that prisons usually receive extraordinary deference in restricting their inmates’ civil liberties (and in spite of the fact that other civil rights’ statutes, like the Americans with Disabilities Act, have been applied in a diluted fashion in the prison context out of deference to prison administrators, see Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994)).
In Grutter, the Supreme Court accorded deference to a university based on academic freedom. The tradition of academic freedom, as opinions in the Bakke and Sweezy cases observe, gives institutions four traditional areas of autonomy, one of which involves selection of their students.
That is not true for school districts, which generally must accept all comers.
School districts, as institutions, do not have a claim to academic freedom, either in tradition or in constitutional law, even though their students and faculty do have free speech rights against such school districts.
Thus, Grutter deference is inapplicable to the school districts whose cases are pending before the Supreme Court, since school districts, unlike colleges, do not have academic freedom.
Even if Grutter had accorded deference based on the academic freedom rights enjoyed by students and faculty as individuals, rather than the academic freedom rights enjoyed by universities as institutions, it would not apply to school districts.
For while free speech certainly does apply in schools, it is not as broad there as it is in college, and is not expansive enough to be termed academic freedom.
The Supreme Court has made this clear by recognizing that freedom of speech is markedly narrower in K-12 schools than in colleges.
While the Supreme Court held that vulgar pamphlets were protected in college in Papish v. Curators of University of Missouri, 410 U.S. 667 (1973), it held that high school students do not have the right to engage in vulgar speech in Bethel School District v. Fraser, 478 U.S. 675 (1986).
As the Eighth Circuit noted in Bystrom v. Fridley High School, 822 F.2d 747, 750 (1987) and the Third Circuit noted in Sypniewski v. Warren County Board of Education, 307 F.3d 243 (2002), high school students do not enjoy First Amendment rights nearly as broad as collegians.
Nor can deference to school districts be based on the supposedly comprehensive nature of their control over students, or a tradition of judicial deference to their having a free hand over their students.
They have less a free hand over their students than public employers have over their employees, yet strict scrutiny applies without deference to public employers under the Supreme Court’s decision in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), which overturned race-conscious faculty job decisions under strict scrutiny.
They receive less deference from the courts than prisons do, and even prisons are subject to strict scrutiny without any deference under the Supreme Court’s decision in Johnson v. California, 543 U.S. 499 (2005).
In their dissent in Johnson, Justices Thomas, Scalia, and Rehnquist argued that since prisons have broad power to restrict the civil liberties of their inmates, and receive extraordinary deference when they do so, they should also receive deference when they use race.
The Supreme Court rejected that reasoning, finding that race is different and that racial classifications are subject to strict scrutiny without deference even when the institution being subjected to strict scrutiny usually gets deference in other context based on federalism or other considerations.
But even if it hadn’t rejected that reasoning, it still would not justify according deference to schools. School administrators have less power to control students’ conduct than do prison officials do with respect to prison inmates, as the Competitive Enterprise Institute amicus brief notes, see id. at pg. 4 & fn. 7; see Beard v. Banks, 126 S.Ct. 2572 (2006). Prison officials do not have to show that speech presents the sort of imminent disruption required for most regulation of speech in the schools under Tinker v. Des Moines School District, 393 U.S. 503 (1969).
More importantly, school administators have much less of a free hand in dealing with their students than public employers do with public employees, yet strict scrutiny applies without deference to public employers who use race. See Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) (invalidating race-based employment decisions). (Indeed, even Justice Stevens, who dissented in Wygant, noted that the burden was on the school district to justify its decision).
For example, many public employees can be fired without due process, for good reason, bad reason, or no reason at all. See Board of Education v. Roth, 408 U.S. 564 (1972).
But students are entitled to due process before they can even be suspended. See Goss v. Lopez, 419 U.S. 565 (1975).
Moreover, public employers have much more control over their employees than schools do over their students, since public employers can control any speech by public employees that is not on a matter of public concern, Connick v. Myers, 461 U.S. 138 (1983), whereas school districts cannot prohibit or control student speech merely because it does not address a matter of public concern. See, e.g., Pinard v. Clatskanie School District, 446 F.3d 964, 973 (9th Cir. 2006); Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001).
Thus, the Seattle School District’s race-based student assignment policy must survive undiluted strict scrutiny. It cannot, since it is just a form of racial balancing condemned in Grutter itself. Thus, it is unconstitutional.
By the way, the AALF did file an amicus brief in support of the parents, arguing that the school districts’ use of race is unconstitutional, and that such race-based student assignments harm Asian American students.
In 1954 the NAACP thought the Supreme Court ought not defer to the Little Rock School Board’s view that race-based school assignment was wise. Today’s NAACP thinks the Supreme Court should defer to the identically racist view of the Seattle School Board. Why?