Court to Address Racial Diversity in the K-12 Education System

I was in my first year of law school when Grutter was decided--and when the opinion came out, I read it (as I did Lawrence v. Texas my third year) with some trepidation. When I finished reading it, though I was far from satisfied, I was at least relieved. The goal of racial diversity had won a reprieve--for now, I remember thinking then. Well, the day of reckoning has come again. Only with a change in judges. I don't feel too good about the outcomes for this case or for the revisit to the issue of dilation and extraction abortion procedures.

From The Los Angeles Times, Court to Revisit Race in Schools:

The justices said they would hear appeals from parents in Seattle and Louisville, Ky., who say it is unconstitutional for officials to consider race when deciding which school a student will attend.

The cities adopted voluntary integration programs in recent years that put limits on how many white or black students may be enrolled in some schools.The Seattle and Louisville cases could put the court on the opposite side of an old issue. Having told school officials in the landmark 1954 Brown vs. Board of Education ruling that they must desegregate their classrooms, the high court will now consider whether the Constitution forbids official efforts to maintain integration.A ruling outlawing such efforts would have a wide effect on schools that continue to use race even after desegregation orders have expired.The Los Angeles Unified School District uses magnet schools to achieve integration, but it does so partly by enrolling students based on their race or ethnicity.

Just three years ago, the court upheld affirmative action in colleges and universities, but two new conservative justices have joined the court since then. Monday's announcement is the second this year that could indicate a shift to the right in a major area of law. The court agreed to hear a case this fall that will determine whether Congress can outlaw a late-term abortion procedure. Beginning with the Reagan era of the 1980s, conservatives have insisted it is unconstitutional for the government to use a person's race as a factor in hiring, awarding contracts, admitting college students, or, in this instance, assigning students to public schools.

The cases are likely to attract unusual attention because of the Supreme Court's historic role in ending school segregation.After declaring segregation unconstitutional in Brown vs. Board of Education, the court said school officials should proceed "with all deliberate speed" to end segregation. Many chose to be deliberate, but not speedy.In 1968, the court said it would wait no longer for schools to achieve real desegregation, and by the early 1970s, many school systems were under federal court orders to bus students across town to achieve desegregation.

And from Lyle Deniston of SCOTUSBlog, this analysis:

In more than a half-century of dealing with racial issues in the public schools, the Court has not ruled on a case in which race is not used as a way to separate the races in the K-12 grades, in which race is not used to provide a benefit to one race but not to others, and in which racial assignments or busing are not used to dismantle official segregation of schools, classrooms or faculties. In other words, the new generation of cases on schools and race are not the traditional kind under the original 19th Century purpose of the Fourteenth Amendment's equal protection clause. "We are here working from doctrines concerning the use of race-based criteria that are mainly the product of 20th Century jurisprudence," remarked First Circuit Judge Michael Boudin.

Put in the most benign way, the new race-based plans are designed to achieve educational and social benefits of "exposing youngsters to those of different races," in Judge Boudin's phrase. That is a precise echo of some of the Supreme Court's sentiments in ending official school segregation in 1954 in Brown v. Board of Education, and thus gives such plans their most positive cultural character.

But, to opponents of such plans, they are nothing but "racial balancing" that sends "the wrong message to our children -- that racial discrimination is more important than individual rights and liberties in today's society," as the Pacific Legal Foundation's Sharon L. Browne has put the matter.

Part of the cloud of doubt surrounding the new cases is that there is little in O'Connor's Grutter opinion that suggests definitively how she or her voting colleagues would have viewed the same constitutional question in the K-12 context. The lower courts that have applied it to elementary and secondary schools find in that ruling a set of principles flowing out of the notion that racial diversity is a positive value, at whatever level of public education it might be pursued. The difficulty for them -- and this is likely to be true, too, for the Supreme Court -- is in determining whether the details of a particular plan make the means of achieving that goal valid.

But, perhaps before getting to those crucial details, the Court may have to confront directly the core claim of opponents of those plans: that race cannot be used at all in public school student assignment, unless it is "remedial" -- that is, correcting for identifiable, continuing discrimination against identifiable students. And that could force the Court to answer a simple but profound question: is the achievement of racial diversity itself in any way "remedial", and, if it is, what evils does it remedy?

And from Michelle Adams of Concurring Opinions (a more positive take):

Both the 6th and 9th Circuits upheld these plans, applying the Grutter "student body diversity" rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy's role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy's vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School's affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of "rational basis" review ought to apply to the case. His theory was that the Seattle plan wasn't really an "affirmative action" plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the "defects" associated with other racial preference schemes because "there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual's aptitude or ability." Thus, from Kozinski's perspective, strict scrutiny need not apply -- and instead a less
deferential form of rational basis review would do. Given Kennedy's position in Romer and Lawrence, will Kennedy be persuaded by Kozinski's argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.