A New Perspective on Monday’s Arguments: Take 1

This entry was written by Andrew Pincus, an attorney at Mayer, Brown, Rowe, and Maw in Washington, DC; he authored an amicus brief in support of the school districts that can be found here.

This op-ed is Part 1 in a two-part series of perspectives on what Monday’s arguments tell us about what the outcome of the school integration cases may be. Later today, we will post the thoughts of Paul Beard of the Pacific Legal Foundation, who authored an amicus brief supporting the other side.

Reports on Monday’s arguments in the school desegregation cases (including Lyle Denniston’s post here) uniformly predicted that the Court is likely to invalidate the Seattle and Louisville plans, and, in addition, may be headed toward a rule barring any race-conscious measures relating to student assignment.

Although reading argument tea leaves is a perilous enterprise, I think the Court may be going in a somewhat different direction.

Perhaps the most critical interchanges of the day took place in response to Justice Kennedy’s questions about the permissibility of considering race in school siting decisions.

Justice Kennedy posited a situation in which a school board must build a new school. “There are three sites. One of them would be all one race. Site two would be all the other race. Site three would be a diversity of races. Can the school board, with the intent to have diversity, pick site number 3?”

The Seattle petitioner took the position that the Constitution barred the school board from basing its siting decision on the resulting racial make-up of the school. The Solicitor General, by contrast, responded that it “is permissible for the school to pursue” diversity by making such a race-conscious decision.

Justice Kennedy did not ask whether school districts could take the same approach in siting magnet programs – choosing a host school based on its racial composition (e.g., purposely locating the program in a predominantly minority school in order to attract white students). That, of course, is the very purpose of magnet programs. Given the close similarity of the decisions, the answers presumably would be the same.

Justice Kennedy also did not ask about a third technique used frequently by school boards: setting the boundaries of the residential areas that “feed” particular schools in order to maximize the racial diversity of those schools. Indeed, the district court in the Louisville case observed that “[r]acial demographics have influenced [Louisville’s] boundaries” for schools and that elementary schools were clustered “so that the combined attendance zones, assuming normal voluntary choices, will produce at each school student populations somewhere within the racial guidelines.”

If a school board can site a new school by considering the racial demographics of the residential areas that would send students to the school, it is hard to see why the same rationale would not permit consideration of race in drawing or redrawing lines for existing schools. There is no basis for distinguishing the two.

In terms of the strict scrutiny analysis, this line of reasoning would lead to an approach that (1) recognizes the school boards’ interest in promoting a diverse learning environment as a compelling one because of the important pedagogic and societal interests it promotes (indeed, there was little disagreement during the argument regarding the importance of the interest); and (2) concludes that some – but not all – race-based measures can satisfy the narrow tailoring test.

With respect to narrow tailoring, the key issue is what distinguishes race-based siting/line drawing decisions from the decisions challenged before the Court? Justice Kennedy commented that the latter involve “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.” Individualized decision-making with race as the sole criterion seems to be the element that triggers the greatest concern.

That discomfort is certainly understandable. Student-by-student decision-making carries the greatest risk of stigmatizing particular students by placing a societal imprimatur on using race to categorize individuals. That could be a reason, as Justice Kennedy intimated, to require a much stronger showing to justify use of such measures.

On the other hand, does the distinction between the two types of decisions really justify a different constitutional rule (as opposed to perhaps requiring somewhat more in the way of justification)? All of the school board decisions just discussed involve precisely the same result – the allocation of students to particular schools based on race. It is true that the siting and districting decisions do not target particular students – but they can get very close, as when the judgment whether to include a particular residential block in one school zone or another turns on the race of the students who live in that block. For those particular students, any distinction seems simply to be a matter of degree.

Treating these techniques differently could lead to unanticipated results. As I mentioned, Louisville utilizes race-based line-drawing, but also allows parents to choose a different school, and uses the racial guidelines to prevent those choices from leading to resegregation. Prohibiting that check might force school districts to eliminate parent choice to preserve the educational benefits of diversity.

Several Justices analogized to Brown in expressing their concerns about individualized race-based decisions. But the decrees issued in the wake of Brown – like the one in Louisville – almost universally included race-based student assignment plans. If that was a permissible response to further the compelling interest in eliminating de jure segregation, why is it also not a permissible means of achieving the compelling interest of promoting a diverse learning environment?

One reason could be the difference in decision-maker – district courts vs. school boards. But there is judicial review of school boards’ decisions, so courts could assess the legitimacy of the plan, both with respect to legitimate purpose (an inquiry that courts must undertake in a variety of contexts) as well as justification.

An interesting aspect of the argument was the attempt of each side to claim that its position was truly consistent with Brown. Petitioners argued that race-blind government decision-making was the legacy of Brown. In fact, Brown did not rely on that rationale. The Court concluded that de jure segregation imposed upon African-American children a badge of inferiority that prevented them from participating fully in society. Substantial evidence before the Court in today’s cases indicates that segregated housing patterns that produce non-diverse student populations have virtually identical ill effects.

Justice Breyer seemed to be invoking this point by his references to the Slaughterhouse Cases and what the Court said there about the meaning of the Fourteenth Amendment to the society that adopted it, which was (as Justice Breyer put it) “to take people who had formerly been slaves and their children and make them full members of American society.” That is the true promise of Brown, and that is the promise that the Seattle and Louisville plans seek to make real.