Still Fighting for Racial Equality

The Supreme Court heard arguments today in two important cases, which may determine, for a generation, the extent to which local school boards and other educational institutions can engage in race discrimination. The cases are Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Bd. of Ed.. The Seattle case seems like the stronger one in which to press the principle that schools should not discriminate on the basis of skin color. George Will sums up the issues:

This city’s school district decided in 2000 that because the son of Jill Kurfirst and the daughter of Winnie Bachwitz are white, they should be assigned to an inferior and distant high school. If they had not left the Seattle school system, this would have required them to rise at 5 a.m. in order to leave home by 5:30 a.m., alone and in the dark, to take the first of three buses, returning home between 8 p.m. and 9 p.m., with almost no time left for homework, family activities and adequate sleep.
When registering children for high school, parents were asked to specify each child’s race. If parents did not specify, the district did so based on visual inspection of the parents’ or child’s pigmentation. The school board president has said “skin tone matters.”

The current Seattle school board is explicitly racist:

Until June, the school district’s Web site declared that “cultural racism” includes “emphasizing individualism as opposed to a more collective ideology,” “having a future time orientation.” (planning ahead) and “defining one form of English as standard.” The site also asserted that only whites can be racists, and disparaged assimilation as the “giving up” of one’s culture. After this propaganda provoked outrage, the district, saying it needed to “provide more context to readers” about “institutional racism,” put up a page saying that the district’s intention is to avoid “unsuccessful concepts such as a melting pot or colorblind mentality.”

The Jefferson County case seems less promising for equal rights advocates, in part because the county’s schools, apparently, were once segregated. The Supreme Court’s web site has already put up a transcript of the Jefferson County argument here. The argument was dominated by the pro-racial classification justices, who made the plausible point that if, 25 years ago, the County was told that the U.S. Constitution required it to classify students by race and achieve quotas in its schools, it is odd, to say the least, to find that the same Constitution now prohibits, instead of requiring, the same conduct.
The Seattle argument is not posted on the Supreme Court’s site as of this moment, but I assume it will be very soon. We may have more comment when we have had an opportunity to review it. But from what I know of the case, the Seattle school board has been engaged in naked race discrimination. Since the city’s schools were never segregated, as I understand it, the case presents no “desegregation” angle. Instead, it is a straightforward case of classification by skin color.
Some observers are predicting that the current court, with Sam Alito replacing the court’s weathervane, Sandra O’Connor, will take a firm stand against race discrimination. We’ll see. From what I know of the Seattle case, it presents a good opportunity to do just that.
UPDATE: For reasons I don’t know, the Supreme Court’s web site still doesn’t have today’s argument transcript in the Seattle case, but it is available here. The transcript is intensely interesting; the anti-race discrimination justices came out much more strongly than in the Kentucky case. Here is Chief Justice Roberts:

CHIEF JUSTICE ROBERTS: You don’t defend the choice policy on the basis that the schools offer education to everyone of the same quality, do you?
MR. MADDEN: Oh, yes. Yes. They offer -the popular schools to which everyone had access under this plan who wanted access, I think it’s — there is no dispute.
CHIEF JUSTICE ROBERTS: How is that different from the separate but equal argument? In other words, it doesn’t matter that they’re being assigned on the basis of their race because they’re getting the same type of education.

The point, of course, is that Seattle offers today the same rationale tha the Supreme Court rejected in Brown vs. Board of Education.
More from Chief Justice Roberts:

CHIEF JUSTICE ROBERTS: But the reason that our prior tests have focused on individual determination is 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. So saying that this doesn’t involve individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color and not any other factor.

Again, if five justices see the case this way, it’s all over, under the Court’s prior jurisprudence. More ominous for the race classifiers than the Chief’s skepticism, perhaps, is this comment from Justice Kennedy:

JUSTICE KENNEDY: The problem is that unlike strategic siting, magnet schools, special resources, special programs in some schools, you’re characterizing each student by reason of the color of his or her skin. That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.

That is, I think, an accurate statement of the Court’s jurisprudence; and, if so, it’s hard to see how the Seattle Board of Education can avoid being on the short end of the Court’s decision.
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