Supremes Hear Racial Assignment Cases

The Supreme Court heard oral argument today in the racial assignment cases today from Louisville and Seattle. According to the reporter who covered the hearing for Bloomberg News, “[a] divided U.S. Supreme Court signaled it probably will bar school districts from trying to integrate their classrooms by using race to assign students to schools.

I hope he’s right.

According to the Bloomberg report, the questions from Kennedy, Roberts, Scalia, and Alito suggested they opposed the racial assignments.

“You’re characterizing each student by reason of the color of his or her skin,’’ Kennedy said to the lawyer defending the Seattle plan. “It seems to me that should only be, if ever allowed, allowed as a last resort.’’

….

Roberts said that “the purpose of the equal protection clause is to ensure that people are treated as individuals rather than based on the color of their skin.’’

The DISCRIMINATIONS chutzpah award goes to Justice Souter for the following:

Souter questioned the logic of letting school boards pursue race-conscious goals only if they use race-neutral methods.

“The question comes down to: Can they do it candidly or do they have to do it by clumsier means?’’ Souter asked. “That is, it seems to me, an unacceptable basis to draw a constitutional line.’’

This wins the chutzpah award because Souter had no trouble swallowing Justice O’Connor’s allowing the University of Michigan to do with subterfuge in Grutter what she wouldn’t allow them, in Gratz, to do openly.

Keep checking this post for UPDATES, since I’ll be adding links to other coverage.

UPDATE: New York Times

David Stout writes that Seattle’s plan “encountered skepticism” in the Court today. I should hope so, given this classic euphemism by Seattle’s lawyer:

Michael Madden, the school district’s lawyer, insisted that the Seattle plan was so “narrowly tailored” as to be acceptable, even though some students are admittedly assigned, based on race, to schools they did not choose. Mr. Madden told the justices that Seattle students who do not get the schools they want are “not being denied admissions” but are rather being “redistributed.”

Justice Anthony Kennedy “told Mr. Madden that the school system seemed to be saying that ‘everybody can get a meal’ but only some people can get dessert.”

Justice Scalia:

“It seems to me you’re saying you can’t make an omelet without breaking eggs,” Justice Scalia told Mr. Madden. “Whatever it takes, we got to do it.”

At that point, if he had been really smart, or a DISCRIMINATIONS reader (if you’ll excuse my redundancy), Justice Alito could have jumped in asked, as George Orwell always asked the Stalinists (as I quoted here), “Yes, but where is the omelet?” Instead, what he asked, according to the Bloomberg report linked above, is

whether the plan achieved its stated goal, pointing to two south Seattle high schools that remained predominantly minority even with the racial tiebreaker.

“Are the students attending those schools getting the benefit of attending a school that’s racially balanced?” Alito asked Madden. “And if they’re not, why are you not concerned about that if that’s an important part of your program?”

Returning now to the Times coverage,

Harry J.F. Korrell, the lawyer for Seattle parents seeking to overturn the system, told the justices at the outset that more than 300 children, “both white and minority children” had been denied admission to the schools they wanted “solely because of their race and without individualized consideration.”

“This strikes at the heart of the Equal Protection Clause, which commands that government treat people as individuals, not simply as members of a racial class,” Mr. Korrell said, alluding to a section of the 14th Amendment to the Constitution.

UPDATE: Los Angeles Times

The LAT agrees with Bloomberg and the NYT:

The Supreme Court justices, hearing arguments on school integration, signaled today that they are likely to bar racial guidelines for assigning students to the public schools….

All the justices who spoke up during the argument agreed that racial integration is a laudable goal. However, a narrow majority of them, in comments and questions, said the Constitution forbade shifting children from one school to another based on their race.

Actually, I doubt that latter point is accurate. Since Justice Thomas, as usual, is said to have asked no questions, it would seem that only four justices who spoke indicated disapproval of assigning students by race — Roberts, Alito, Kennedy, and Scalia.

Mr. Madden, Seattle’s lawyer, appeared to have trouble extracting his foot from his mouth:

… Chief Justice John G. Roberts said, “The purpose of the equal protection clause is to ensure that people are treated as individuals rather than based on the color of their skin.”

No students have been excluded from school because of their race, responded Michael Madden, the school board’s lawyer. They may be assigned to a “different [but] basically a comparable school.”

“Everyone got a seat in Brown as well,” replied Roberts, referring to the landmark decision that struck down racial segregation. “But because they were assigned to those seats on the basis of race, it violated equal protection.”

Madden disputed the comparison between forced segregation and voluntary integration. “Segregation is harmful” to students, while integration “has benefits,” he said.

Presumably Madden did not explain what was “voluntary” about the denial of 300 students in Seattle of their choice of school because of their race (about 10% of the total).

In O’Connor’s absence Justice Kennedy has often been described as the new swing justice. If so, he seemed to be swinging right (correct) today:

Outright racial balancing is patently unconstitutional,” said Justice Anthony M. Kennedy, a centrist who often casts the deciding vote. “And that seems to be what you have here,” he told the lawyer defending Seattle’s program, whose guidelines gave “nonwhite” students first choice for enrolling in its most popular, predominantly white high schools

UPDATE: Boston Globe

The headline says it all: “Key US justice opposes use of race in school cases”

UPDATE: Slate

Dahlia Lithwick’s coverage, as usual, is long on the drama and short on analysis.

What is rapidly clear is that these cases are less about doctrine, or even social science, than about visceral impressions. These plans are, to the justices, either a noble continuation of the court’s fine work in Brown or a vile means of reducing small children to the color of their skin.

As this and other comments reveal, it’s clear Ms. Lithwick’s response to the argument over whether and what sort of racial discrimination the Constitution allows is visceral, but it’s not clear anyone else’s is. Her overly dramatic dichotomy, for example, has no room for anyone who believes that assigning students to school based on their race is a repudiation, not a continuation, of Brown, nor does everyone (indeed, does anyone, especially any Supreme Court Justice) really believe these well-intentioned if misguided plans are “vile”? I don’t think so.

Alas, even Ms. Lithwick can’t make Seattle school district lawyer Madden’s arguments other than humorous. Thus:

Harvey Korrell, who argues for the Seattle parents, starts with the “over 300 children denied admission to their chosen schools solely because of their race.” Michael Madden, representing the Seattle School District, opens with the “harmony and mutual respect” that children imbibe when they attend racially diverse schools.

It would appear that Mr. Madden has never set foot in a public school.

Next, Dahling Dahlia offers what she seems to think is a plague on both their houses:

The visceral feelings of the justices aren’t much of a surprise, either. A bombastic Justice David Souter insists “this is not an affirmative action case” because everyone gets to go to a school here, even if it’s not necessarily the school of his or her choice. [Why is that true of affirmative action cases?] As Justice Stephen Breyer puts it, there’s no “prize” on offer, so the affirmative-action cases involving coveted college slots are not relevant. [But the Seattle plan was devised in part because the three most popular high schools were oversubscribed.]Justice Ruth Bader Ginsburg tries to out-Roberts John Roberts by suggesting that nobody in these cases has legal standing to even be in court. Then, she wonders how the Constitution could mandate the use of race in school desegregation one day and prohibit it the next? [The same way Brown did.] Breyer asks Solicitor General Paul Clement if he is an education expert. [Did Clement ask Breyer the same thing?] “Lots of schools are becoming more and more segregated” [said Breyer, the education expert, based on something he read somewhere] and the school boards should be entrusted to resolve the problem. “Why,” he asks, “does the Constitution require us, the judges, to go in and tell them to take black children out of school?” [Who said it did? This is too weird, even for Breyer.] Justice John Paul Stevens wonders if it’s also unconstitutional to take race into account when hiring teachers. [And his point was? Whatever, it should be.] Souter asks why schools shouldn’t be able to use racial factors openly. “Can they do it candidly or do they have to do it by clumsier means?” he asks. [Ask O’Connor]

The conservative justices on the court are, for their part, equally sickened by this practice of—to quote Roberts last spring—”divvying us up by race.” Justice Scalia is at his sardonic best, asking the lawyer for the Seattle school board whether it would be permissible for the government to foster diversity by encouraging “people to move into Little Italy” and have “street festivals.” Justice Samuel Alito is affronted by the Seattle policy of lumping Asian, Latino, and black students together as “nonwhites.” Would a school composed of 60 percent Asian and Latino students and 40 percent white students be “racially balanced?” he wonders. Scalia asks whether a child with a white grandfather is considered white. And Chief Justice John Roberts says that if every single student still gets a place in school, “How is this different from separate but equal?”

It may be just me (liberal chorus: Yes!), but the liberals here seem even more inane than usual while the conservatives seem ask penetrating questions.

UPDATE: The Christian Science Monitor

In an editorial, the CSM asks the relevant question several different ways:

… whether a measure of unequal treatment should be allowed to overcome inequalities, or whether creating an American society of harmonious racial relations will require inharmonious means to achieve it.

….

How much can the Constitution’s provision on equal treatment before the law be compromised for a social good such as racially diverse classrooms?

….

… how compelling is the goal of racial diversity if that requires narrowly tailored discrimination by skin tone?

Despite the fact that the editorial is subtitled “The Monitor’s View,” it doesn’t give one. It concludes: “The justices must know the public is demanding a clearer answer,” but it never gives its view of what the answer should be. Odd.

UPDATE: Legal Times

I called one of my earliest posts on the racial school assignment cases “Busing Without (For Now) The Buses.” In fact, I’ve made the same point many times, as in a post whose title also says it all — “Racial Preference: Busing Redux” (citing many other posts making the comparison of preferences to busing).

According to Tony Mauaro’s article in Legal Times, apparently Justice Breyer agrees:

One measure of the tenor of the arguments Monday was the repeated effort by Justice Stephen Breyer to remind his colleagues about long-standing Court precedents, ranging from Swann v. Charlotte-Mecklenburg Board of Education to Cooper v. Aaron, which in his view support the use of race to achieve public school diversity.

Swann, the 1971 ruling that allowed the use of busing and racial balancing to eliminate lingering segregation, was repeatedly cited by Breyer….

Busing progressed, some of you will recall, from its earlier phase, where it could reasonably be described as intending to “eliminate lingering segregation,” to its later and more controversial phase, where it was designed to bring about racial balance even in cities where the schools had never been segregated.

Critics of racial preference/busing have argued long and loudly that once the camel’s nose of racial preference is allowed under the tent, it would prove almost impossible to get it out. Once again, according to Mauro, Justice Breyer confirmed the legitimacy of that complaint:

Once desegregation is achieved through these measures [busing, racial assignment, etc.], Breyer said almost plaintively, “How could the Constitution . . . tell the school board it cannot make that effort anymore, it can’t do what it’s been doing, and we’ll send the children back to their black schools and their white schools?”

Did Justice Breyer ask Justice O’Connor that question when she indicated that racial preference should become unconstitutional in 25 years? If so, I missed it.

Also his lament that if racial school assignments are barred “we’ll send the children back to their black schools and their white schools” borders on sheer demogoguery. These cases arose from school boards denying students their choice of schools because of their race. Why and how does Justice Breyer think that barring that practice would somehow authorize school boards to “send” black students to black schools and white students to white schools?

UPDATE: Terence Pell

Terence Pell, whose excellent Center for Individual Rights brief I’ve quoted several times, sends the following comment on the oral argument:

Yesterday’s argument was eye-opening in more than one way. Though it looks like the plans will be struck down, there was no interest at all in re-visiting the flimsy idea that diversity ever provides a compelling interest for racial classifications. I fear that we are in for a long series of cases that say, basically, “while the Court agrees that diversity is an exceedingly important objective, this, that, or the other feature of this plan is an impermissible means for achieving that goal.” One can only hope that after a few of these, the Court gets the idea that the problem is with the idea of diversity in the first place.

he supporters of racial balancing are not the descendants of Brown, which desegregated public schools, but of Plessy v. Ferguson, which upheld the pernicious “separate but equal” doctrine in the late 19th century. Just as the Plessy majority obtusely asserted that if separation meant inferiority it was only because the minority chose “to put that construction upon it,” so too the advocates of today’s rigid ratios of white and non-white students can see no harm. The harm, however, is palpable. And it is to all races, since it indulges the ugly stereotype that skin color determines thought and action.