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?