Commentary: Limiting the Use of Race

The following comments are from Hans Bader, Counsel for Special Projects, The Competitive Enterprise Institute. He filed an amicus brief for Competitive Enterprise Institute in support of the parents in the Seattle case.

In its decision striking down the race-based student assignment policies used in the Seattle and Louisville schools, which sought to promote “racial balance,” the Supreme Court dealt with school districts that are not currently segregated (indeed, Seattle has never been segregated).

The Supreme Court’s decision was consistent with the 1964 Civil Rights Act, which declares that “’desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”

While the court’s decision will further limit the use of race to remedy certain forms of “discrimination,” such as unintentional or “disparate impact” discrimination, as I explain below, it leaves unclear exactly when, or how much, race can be used in the school setting for the sake of non-remedial interests like “diversity.”

Interestingly, the justices highlighted the bizarre claims about race made by the Seattle schools, which cast doubt on whether allowing schools to use race will promote racial harmony rather than racial balkanization.

For example, the Chief Justice’s opinion points out that “Seattle’s web site formerly described ‘emphasizing individualism as opposed to a more collective ideology’ as a form of ‘cultural racism,’ and currently states that the district has no intention ‘to hold onto unsuccessful concepts such as [a] . . . colorblind mentality.”

Justice Thomas pointed to those claims, and other bizarre claims on Seattle’s web site, in rejecting the dissent’s argument that “local school boards should be entrusted to make decisions on the basis of race.”

(Similarly, my think-tank, the Competitive Enterprise Institute, cited these claims in its amicus brief arguing that the Seattle Schools’ use of race should not receive special deference from the courts. CEI also cited Seattle’s racially offensive assertion that “future time orientation” – planning ahead – is a white characteristic that it is racist to expect minorities to exhibit. See Nebraska v. EPA, 331 F.3d 995, 999 n.3 (DC Cir. 2003) (court can take judicial notice of government agency’s web site)).

Ironically, although the Court’s ruling dealt with schools, it may do more to limit the use of race outside the educational context than within it.

In Richmond v. J.A. Croson Co. (1989), the Supreme Court held that local governments can use race to remedy the present effects of past discrimination, but struck down the racial set-aside program used by the City of Richmond, a majority-black city where few municipal contracts had gone to blacks.

In Croson’s wake, lower court decisions have split on whether race can be used to remedy forms of “unintentional” discrimination like disparate impact.

Some decisions, like then-judge Breyer’s decision in Stuart v. Roche, 951 F.2d 446 (1st Cir. 1991), and the Ninth Circuit’s decision in Officers for Justice v. Civil Service Commission (1992), have held that under Croson, race can be used to offset a mere prima facie case of “disparate impact.”

Other decisions have rejected using race to remedy “disparate impact,” finding that doing so would devour the general rule against racial discrimination, since a prima facie case of disparate impact can be made against almost any employment or educational test or criterion, even if it is legitimate and business-related.

Thus, Judge Easterbrook held in Biondo v. Chicago, 382 F.3d 680, 681 (7th Cir. 2004), that Croson only authorizes the use of race to remedy intentional past discrimination, since “if avoiding disparate impact were a compelling interest, then racial quotas in public employment would be the norm.”

Similarly, Chief Judge Posner held in People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997), that to use race under Croson, a school district must show that it once “discriminated intentionally – the only kind of discrimination that violates the equal protection clause.”

The Supreme Court’s decision today makes clear its Croson line of cases only authorizes the use of race to remedy past intentional discrimination. The Court’s opinion describes its decisions as involving the “compelling interest in remedying the effects of past intentional discrimination.” Similarly, the Chief Justice’s plurality opinion notes that “our precedents recognize the compelling interest in remedying past intentional discrimination,” and Justice Kennedy’s concurrence describes the Croson line of cases as involving an interest in “remedying the effects of past intentional discrimination.”

These statements wash away the foundations of cases like Stuart v. Roche that assume that Croson allows unintentional discrimination – such as a mere prima facie case of disparate impact – to support the use of race. That helps resolve a circuit split, and clarify the law outside the educational context.

But in the educational context itself, Justice Kennedy actually creates more confusion through his ambiguous concurrence.

Justice Kennedy’s concurrence recognized that the use of race in Seattle and Louisville did not remedy intentional discrimination, as thus was subject to tougher scrutiny than a remedial use of race would be, both in terms of whether a compelling interest in using race was demonstrated, and whether the use of race was narrowly tailored.

But his concurrence simultaneously opened the door to possible non-remedial use of race by some school systems in the future, suggesting that in a future case, race might be used in a more “nuanced” way by a school system seeking to use race as one of many factors to promote a non-remedial goal like “diversity” or preventing “racial isolation,” if achieving those goals first proves impossible through race-neutral means.