Analysis: an unanswered, delicate race question

Last October, judges on the Ninth Circuit Court observed that “the Supreme Court has never decided a case involving the consideration of race in a voluntarily imposed school assignment plan intended to promote racially and ethnically diverse [public] schools.” A year ago, judges on the First Circuit Court said much the same thing: the Supreme Court “has not yet considered a constitutional challenge to a voluntary race-based transfer policy for elementary and secondary schools…” The Court had a chance to consider that issue last December, but passed up the chance. Now, with a change in composition, the Court has opted to take it on. There may be a connection.

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.

The Supreme Court may not embrace either one of those descriptions when it rules on the two cases that it accepted on Monday for review at its next Term: Parents Involved v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915). But it has given itself the task of drawing some historic constitutional conclusions, and its change in membership may make the difference in how those are framed. At this stage, it may be a matter of total uncertainty how the Court will come out, making the new cases potentially the most closely-watched of the new Term.

The Court, it seems clear, has not been eager to get involved in this new racial controversy. Before it granted review of the two cases from Seattle and Louisville, Ky., it had considered them at six consecutive Conferences. That was not an indication that the Court thought the cases lacked importance. It more likely was a sign of hesitancy about whether there really is a conflict in the lower courts in judging such plans, so it wanted to be satisfied that the time had definitely come for it to move into the fray. There also could have been some defensive concerns, supporting a resistance to review when the voting lineup would not be predictable.

When the Court had before it one of these plans, from Lynn, Mass. (in Comfort v. Lynn School Committee [05-348]), Justice Sandra Day O’Connor was still on the bench. At that point last December, however, it was still uncertain when O’Connor’s retirement would occur, and when her replacement, Justice Samuel A. Alito, Jr., would arrive. Although this cannot be known by outsiders, the chances are that the Court at that time was avoiding major controversies in which the Justices almost certainly would wind up deeply divided. It took but one look at the Lynn case, and passed, even though the differences between that case and the ones now granted are by no means glaring, and the constitutional issues are virtually identical.

Justice O’Connor, of course, wrote the majoity opinion in 2003 when the Court — dividing 5-4 — decided the constitutional issue that is newly at stake in the public school cases, but it did so in Grutter v. Bollinger, a case confined to the public college level, dealing with admissions criteria. The Court then allowed limited use of race in college admissions decisions. O’Connor’s opinion was joined by the Court’s four moderate to liberal members — Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

Those other four remain on the Court, as do three of the dissenters — Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. Chief Justice William H. Rehnquist, the fourth dissenter, is now deceased. There is no way to predict how Chief Justice John G. Roberts, Jr., will approach the new public school cases, nor is there about Justice Alito. But the two of them do appear, at least at this early stage, to hold the balance of voting power.

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?

It is not clear, yet, how many school districts across the country may have plans akin to those now before the Court. By one estimate, some 1,000 districts are using or experimenting with “racial diversity” in their student assignments. No doubt, the numbers will get more precise by the time the Court takes up the cases in early winter. A flood of amici filings are sure to come.