Joan Biskupic of USA Today is usually a reliable legal reporter, but I have some questions about her article today dealing with the Seattle and Louisville racial school assignment cases that will be heard by the Supremes on December 4.
She writes:
The school districts in Louisville and Seattle are at the heart of a pair of legal disputes, now before the U.S. Supreme Court, that test whether public schools can use race as a factor in determining where students go to school….
The key legal question in the Louisville and Seattle lawsuits — which were filed by parents of white students who weren’t allowed to attend the schools of their choice — is whether school-assignment plans that use students’ race as a factor violate the Constitution’s guarantee of equality.
But is race really only “a factor” in these cases? In the Louisville case, as I noted here, quoting an article in USA Today by Sharon Browne of the Pacific Legal Foundation:
When Crystal Meredith of Louisville tried to enroll her young son in Bloom Elementary School, she was told he couldn’t transfer out of Young Elementary, the school where he was already assigned.
Why? Not because of his grades or interests. It was because he is white. As a federal district court later recounted the facts, he “was denied admittance because his transfer to Bloom would have had an adverse effect on Young’s racial composition.”
For young Mr. Meredith, it would appear that race was the only factor in the denial of his transfer request.
Similarly, for many students in Seattle race seems to be the only factor that determines their school assignment. As the Solicitor General noted in the statement of facts in his brief (citations omitted):
1. The Seattle School District operates ten, four-year public high schools. Under the District’s “Open Choice” plan, rising ninth graders may choose to attend any of those schools. Five of the schools … are typically “oversubscribed,” meaning that substantially more would-be students have chosen to attend the school than the school can accommodate. When a school is oversubscribed, the District assigns students in accordance with a series of four “tiebreakers.”
First, students who have a sibling enrolled in the oversubscribed school are given priority admission.
Second, the District will admit a student to an oversubscribed school only if his race does not contribute to “racial imbalance” in the school. A school is considered “racially imbalanced” if the racial composition of its student body differs by more than a set number of percentage points from the racial composition of all Seattle public school students. In making this calculation, the District considers only race (not ethnicity), and classifies all students as either “white” or “nonwhite.” Because the demographics of the District’s overall public school enrollment is approximately 60% nonwhite and 40% white, a student will be admitted to an oversubscribed, racially “imbalanced” school only if, based on his or her binary racial classification, the student would bring that school’s racial composition closer to a 60% nonwhite/40% white balance….
The third factor was distance from the school, and the fourth was a little-used lottery.
Thus, although race was not literally the only “tiebreaker” considered in deciding whom to admit to an “oversubscribed”school, it was in fact the only factor that caused a number of student requests to be rejected. Put another way, a number of student requests were rejected for no reason other than the students’ race.
It thus seems to me that Ms. Biskupic has seriously misstated what these cases are about.
In addition, Ms. Biskupic writes:
The new cases differ from other affirmative action disputes the justices have faced because no individuals are being turned away entirely from an education or a job.
Again, I believe this is not really accurate. For example, in Gratz v. Bollinger, the Supreme Court found, quoting Justice Rehnquist’s majority opinion, that
as a Caucasian in-state applicant, Gratz’s GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz’s scores would have fallen within a cell calling for admission.
….
When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted.
Yet neither Ms. Gratz nor Mr. Hammacher were “turned away entirely from an education.” They were simply turned away from their choice of schools, the University of Michigan. Just as many students in Louisville and Seattle are turned away from their choice of schools because of their race.
