A Stitch in Haste

Assuming I understand the facts of the cases correctly, here are my hasty stitches about the granting of certiorari to two cases in which K-12 school assignments within a school district are based in part on race.

--I included the Supreme Court's race-based admission jurisprudence in my list of the Ten Worst Supreme Court Cases. The purpose of schools is to educate, not to create "diverse environments" with which to generate warm fuzzy feelings for politicians and educrats. If academic administrators want to foster racial diversity, then the quickest way to do so is by abolishing self-segregation by the students themselves (e.g., race-based extracurricular activities). What's the point of having lots of (fill-in-the-blank minority) students at Diverse U. if they're just going to spend all their time meeting at the (fill-in-the-blank minority) student union, holding meetings of the (fill-in-the-blank minority) student association and living in the (fill-in-the-blank minority) special interest dorm? Anyone who's attended a major and "diverse" college or university (or law school) knows that this is precisely what tends to happen. Sad, but true.

--On the other hand, the gripe about race-based admissions at elite colleges or law schools is precisely the fact that they are elite colleges and law schools — there is competition for limited slots and there is a direct detriment to the student who is "race-based" out of a slot. The crowding out effect is essentially 1:1 — every race-based student admitted equals a race-based student excluded. This is collectivist, Rawlsian utilitarianism at its most vicious — some students are flat-out sacrificed "for the greater good." That is not the American way, or at least it should not be. But is this also what occurs in the K-12 districts at issue in these cases? If I understand correctly, no student is "denied admission" to the district; they're just scattered throughout the district in such a way as to create "diverse" student bodies. Now if you assume that the schools comprising a given district are relatively homogeneous (is this a safe assumption?), then "no child is left behind" and all the children enjoy the purported benefits of academic diversity — just a bit further from home. So one could argue that these grade-school programs are less invidious than the college and law school programs of Bollinger and therefore should withstand constitutional scrutiny.

--On the other other hand, isn't there also a "compelling government interest" in community-based schooling? Isn't there a real benefit to keeping kids close to home (i.e., simply send them to the nearest school)? Isn't it a good thing when kids go to school with the kids who live just down the street (not to mention their siblings), so they can develop stronger friendships, play together, study together, etc.? And not to be trite, but what if the kid misses the bus — why make Mom or Dad drive him clear across town? When you have competing "compelling interests" in education, who gets to rank their importance — judges, the NCLB Commissars at the Department of Education, state educrats, local educrats — or maybe, just maybe, the parents?

From a positive perspective, I suspect the programs will be upheld. Either that or the entire Bakke-Bollinger line of cases would have to be overturned. That is highly unlikely, two new Justices notwithstanding.

From a normative perspective, if "basing decisions on race is bad," then basing decisions on race is bad, and we should stop it entirely, including for supposedly noble purposes.

And, again, if we had a system of public funding of education, rather than public provision of education, then we would not face these Solomonesque decisions.

The cases are Parents Involved v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915).

More thoughts from SCOTUSblog, Concurring Opinions.

The Supreme Court is hearing oral arguments Monday on two challenges to school districts that choose, without compulsion from the federal government, to assign students in such a way as to create racially diverse schools:

The Bush administration is siding with parents against the school districts, arguing the policies are an unconstitutional, albeit well-meaning, "racial balancing" without a compelling justification. "A well-intentioned quota is still a quota," the administration said in a brief submitted on the Kentucky case.

Civil rights advocates say a ruling that bars schools from taking race into account would deal a devastating blow to the promotion of diverse schools.

First, we must recite the required libertarian mantra that in a system of strictly private education — or even a system of public finance rather than public provision — such questions as these would simply not arise. Go figure.

Having said that, there is a key difference between these quota or quasi-quota systems and those used in competitive colleges as authorized under the chain of cases stretching from Regents v. Bakke, 438 U.S. 265 (1978), to Grutter v. Bollinger, 539 U.S. 306 (2003) (a chain that, recall, is on my list of the Ten Worst Supreme Court cases).

The University of Michigan Law School may very well believe that creating a "diverse" student body is a desirable goal — that it will somehow help produce better lawyers. I'm skeptical. But one way or the other, it certainly won't do any good for those who are denied admission as a result of racial preferences — you can only benefit from a racially diverse law school if you're actually enrolled there. By excluding — and that's a critical facet — anyone based on racial factors is unconscionable, un-American and, at least in my opinion, patently unconstitutional, the Supreme Court notwithstanding.

But the factoring in of race within a school district does not "exclude" any child from attending school within the district. It's a fundamentally different framework than college admissions. Every student "re-assigned" to create a network of racially diverse schools still gets an education. (The Louisville and Seattle systems are a little more complicated than that, but the basic framework, not the nuances, are the source of the controversy.) Bottom line: No one is shut out.

So that makes it okay, right?

Wrong:

But to some parents, all of that is broad theory that does not compensate for denying kids the school of their choice or the one in their neighborhood.

Louisville parent Crystal Meredith ... says the plan kept her son, Joshua McDonald, from attending a nearby elementary school.

It seems rather obvious to me (though I am of course not a parent) that there are clear benefits to truly local schooling (i.e., going to the school closest to your home).

And the costs aren't simply economic — school buses burning more gasoline and such. There is a certain real if intangible utility, both for the student and the parent, from knowing that the school is close to the home. Medical emergencies, storms and blackouts come to mind. And even in the era of cell phones and instant messaging, isn't there an irrefutable logic behind having kids who live in the same neighborhood go to the same school? So they can do homework together, develop closer friendships, etc.? How can a school district — or the Supreme Court — weigh such costs against the purported benefits of "diverse" student bodies and decide that one interest is more "compelling" than the other?

So here's my proposed compromise: Allow school districts to engage in this racial reassigning, but only if each household has an inviolate right to opt out in favor of the local school, and only the local school. Note that this is not the same as unfettered school choice; that would be far too libertarian approach for this Court. Recognize the clear "compelling interest" in being close to home if the parent recognizes it, while also strive, even if via color, for a color-blind society if and only if the parent does not object.

That's my decision. Any dissents?

The cases are Parents Involved in Community Schools v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915). More thoughts from SCOTUSblog, George Will.

This one might only be for the lawyers.

Isn't it interesting that Chief Justice Roberts was able to so casually dismiss the standing challenge in the race-based cases, yet hung his entire hat on the lack of standing in Hein v. FFRF (the faith-based initiatives case)?

Race-based admissions:

The group's members have children in the district's elementary, middle, and high schools, and the complaint sought declaratory and injunctive relief on behalf of [group] members whose elementary and middle school children may be "denied admission to the high schools of their choice when they apply for those schools in the future." The fact that it is possible that children of group members will not be denied admission to a school based on their race -- because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage -- does not eliminate the injury claimed.

Let's rewrite that passage:

The group's members pay federal taxes that underwrite the federal government's legislative, judicial and executive branches, and the complaint sought declaratory and injunctive relief on behalf of group members whose taxes may be used in violation of the Establishment Clause. The fact that it is possible that group members will not be denied their First Amendment right of freedom from religion -- because their taxes are being unconstitutionally allocated by one branch rather than another -- does not eliminate the injury claimed.

Yet that was exactly the reasoning rejected in Hein. Go figure.

I suppose Roberts is channeling Emerson: Apparently to him a foolish consistency really is the hobgoblin of little minds.

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As for the cases themselves, I don't know when or even if I will slog through all 185 pages. My main question, which I will seek to answer later, is as follows:

If race-based preferences are unconstitutional in the context of a school district where every student is guaranteed a seat somewhere in the district, just not their first choice (i.e., a student may be denied, based in part on race, admission to "a school," but not to "the schools"), then how can such preferences be constitutional if they, based in part on race, deny access altogether (i.e., when "a school" and "the schools" are the same thing)? How can the lesser denial be unconstitutional but the greater denial not be? How can Grutter v. Bollinger, 539 US 306 (2003) which said as much in the context of raced-based preferences in law school admissions, possibly still be good law?

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Meanwhile, my basic thesis on academia is unchanged:

I accept the premise that universal elementary and secondary education, properly crafted, is a legitimate public good. The positive externalities are so significant as to make taxation, properly crafted, to underwrite it inoffensive from a libertarian perspective.

However, that does not automatically mean that basic education should be publicly provided, but only that it should be publicly financed. Stated differently: Vouchers, vouchers, vouchers!

Post-secondary education, however, generates far fewer, if any, positive externalities. Colleges and universities should, therefore, be neither publicly provided nor publicly financed. The notion, meanwhile, of taxpayers subsidizing graduate and professional programs -- such as law schools and business schools -- is facially absurd. If you want to go to law school, then do so on your own dime.

Earlier I blogged --

If race-based preferences are unconstitutional in the context of a school district where every student is guaranteed a seat somewhere in the district, just not their first choice (i.e., a student may be denied, based in part on race, admission to "a school," but not to "the schools"), then how can such preferences be constitutional if they, based in part on race, deny access altogether (i.e., when "a school" and "the schools" are the same thing)? How can the lesser denial be unconstitutional but the greater denial not be? How can Grutter v. Bollinger, 539 US 306 (2003) which said as much in the context of raced-based preferences in law school admissions, possibly still be good law?

Apparently this paradox is also behind the schism between the four-Justice plurality and Justice Kennedy's concurrence --

Roberts, Scalia, Thomas, Alito (and me): "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" (i.e., "Never, no way, no how...").

Kennedy: "The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race" (i.e., "Sometimes, just not here...").

More thoughts on this observation at SCOTUSblog, Dorf on Law, Balkinization.

I hope Kennedy is enjoying his incessant game of "I will agree with the plurality just enough for my concurrence to be controlling." See my previous post.

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An (adapted) comment that I left at another blog:

Kennedy's thesis would be stronger if one noted that lower-income inner city racial enclaves were the direct result of past government action (e.g., the Housing Act of 1949) and not from strictly private discrimination.

Without that, there is no basis to dismiss as "offensive and blinkered" the patently obvious conclusion that a school -- in a black neighborhood full of black students from that black neighborhood -- is, without more, surely not "racist."

This ties into my previous point that there is certainly a "compelling interest" in fostering local schooling that at least partially offsets the (supposed) "compelling interest" of achieving racial diversity across a school district.

Note also that one of the school districts -- Seattle -- had never been deemed "segregated" by the federal government. So even this sort of tether to a segregated past would be inapplicable. (The other school district -- Louisville, Kentucky -- has been removed from the federal government's list of schools in need of racial remediation.)

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Note that race-based admission jurisprudence, from Bakke to Grutter, is on my list of the worst Supreme Court cases. Kennedy's concurrence can be appended to that entry.