Posted by: bridget | 2 July 2007

S. Ct. on Seattle Desegregation, Part II

More pachyderm musings on the Parents Involved case:

Separate but equal and Brown: Before Brown v. Board was decided, the NAACP litigated many cases under the “separate but equal” standard of Plessy. Segregated schools did not merely bring a psychic injury to black children; they were noticeably inferiour to white schools. Eventually, the NAACP realised that it was pointless to litigate cases over every single segregated school system and instead began to bring forth the theory that separate cannot be equal.

Brown was a shortcut to equal facilities (sorely lacking in the Jim Crow era) as well as an affirmation of black equality, not a mandate of quotas or diversity. The Seattle school district – and those who oppose the Parents Involved plurality opinion – bring forth no complaint about the core Brown issues of inferiour facilities or an imprimatur of inequality. There is no evidence that the schools in predominately black neighbourhoods are noticeably worse than those in predominantly white areas, nor is there any evidence that forced integration increases the self-worth of young black children.

Even if the schools in black neighbourhoods were worse, the correct response is one that addresses the relevant harm – i.e. improvement of the majority-minority schools so that all students can receive a quality education, regardless of residence. The incorrect solution (albeit the one chosen by the Seattle district) would be to shuffle students around so that the educational inequality is doled out fairly to those of all races, although justly to none of the students forced to receive an education in those schools.

Limiting Grutter to universities: The plurality opinion declined to overrule or even gut Grutter. Given that it was decided in 2003, there is little reason to defer to it. The Court chose to limit its reach to higher education (although there is little basis in the text of the Constitution for doing so) and stated that its standards had not been met. This is similar to the tack taken by the Court in Gonzales v. Carhart a few months ago.

Diversity and critical mass: Chief Justice Roberts demonstrated that the definitions of “diversity” used do not encompass any rational notion of racial diversity, let alone diversity in other arenas.

The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment,” App. in No. 05–908, at 128a, 129a. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter, supra, at 329.

States may discriminate on the basis of race so long as such discrimination is “narrowly tailored to meet a compelling state interest.” Most Fourteenth Amendment jurisprudence is focused either on the first clause (whether or not the relevant law is narrowly tailored to the need in question) or the second clause (state interest). Very little jurisprudence is focused on whether or not the relevant law actually, concretely, “meet[s]” the asserted interest. The Court often seems loathe to determine if a law has its intended effect or if its rationale is mere conjecture. For this engineer, a movement towards analysis of the actual effects of policy is quite refreshing.

While many neighbourhoods can be delineated along racial lines, they are almost always segregated by income (and thereby by other family circumstances, such as parental education and marital status). Here, race is a decisive factor whenever employed, not one of many – even one that many trump the educational needs of students. Seattle does not express the desire to distribute students among schools based on race, religion, socio-economic status, or the marital status of their parents. As in the Jim Crow South, race is the sole factor in sorting students. Is this any less odious simply because the ends are different?

Grutter was justified, in part, under the theory that affirmative action is needed to bring in a “critical mass” of minority students. There seems to be little agreement as to what percentage of students constitutes the critical mass in question.

Even if such a percentage could be determined with mathematical precision, there is no sane way to reach this critical mass if the relevant population would not provide enough students. For example, if the critical mass in question were 20% minority, many schools will automatically fall below this critical mass if only 5% of the eligible students are minorities. Would a scheme whereby 8% of the students are minorities instead of 5% be constitutionally valid, even if 8% is still short of the critical mass and denies enrollment to other qualified students?



  1. Hi Bridget,

    “nor is there any evidence that forced integration increases the self-worth of young black children.”

    Agreed, in fact I could see how wasting time with superfluous bus rides could breed a victim mentality.

    The last paragraph points out the logical consequences of these bad decisions. That Seattle’s original decision would lead to such a quaqmire of follow up decisions should have been a clue that their premise was wrong.

  2. Here is a case I would love to see you blog about…

    “Stealing someone’s heart can cost you: Just ask German Blinov. A Cook County jury ordered Blinov to shell out $4,802 last week after he was sued by a husband from a Chicago suburb for stealing the affections of the man’s wife.”

  3. Great post and I agree. Seattle wasn’t seeking to erase notions of inferiority like Brown or to erase stereotypes of minorities like Grutter, but rather sought their schools to reflect the demographic of society at large.

    The rigid white/non-white breakdown was absurd as well. The system could work to exclude a Native American from a school even if there were no other Native Americans at that school if there were “too many” “non-whites.”

  4. but rather sought their schools to reflect the demographic of society at large.

    Pretty much – there is some absurd idea that each school should represent the demographics of the entire city.

    The rigid white/non-white breakdown was absurd as well. The system could work to exclude a Native American from a school even if there were no other Native Americans at that school if there were “too many” “non-whites.”

    Exactly. You’ve got to wonder what magical experience blacks bring to a school that Asian immigrants or Native Americans would not bring.

  5. Neil,

    Good points. Long bus rides would breed both a victim mentality and the mentality that those students don’t truly belong. There is little doubt in anyone’s mind that you belong at the school that is five blocks from your house. If you’re going to one that is five or ten miles away, you’re going to feel left out.

    More than that, it’s very difficult to participate in after-school activities if you can’t get rides home from other parents (because you live ten miles away) and if the bus leaves immediately after the last bell. I don’t see how we can expect kids to fully participate in the school community if they are being sent all over the city.

  6. Total Transformation: I’ll look into it. ;) Let me get my dry humour on and I’ll give it a go. :)

  7. You should feel free to repost any judicial stuff like this on the fed-soc blog.

  8. You’re the boss. :) I’ll consolidate, clean it up, and put it up there.

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