Opening Argument – Is There a Middle Ground on Race?

National Journal

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs’ approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court — in Seattle and metropolitan Louisville, Ky. — "are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students — especially poor blacks — hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

But unlike such preferences, race-based student assignment programs, if well designed, neither give minorities a systematic edge over whites nor displace merit selection by favoring less-qualified over better-qualified applicants. Two of our most thoughtful federal appellate judges — Michael Boudin of Boston and Alex Kozinski of Pasadena, Calif., both Republican appointees — have stressed these distinctions. In Kozinski’s words, school integration "gives the American melting pot a healthy stir without benefiting or burdening any particular group."

The Roberts opinion also minimized the vast gulf between the race-based measures at issue in these cases and the racial caste system that once oppressed descendants of slaves in the segregated South. And the chief justice exuded eagerness to block local and state officials around the nation, by judicial decree, from promoting school integration.

If this is judicial modesty, what would conservative judicial activism look like?

The liberals. The in-some-ways-apt critique of the decision from the four liberal dissenters was marred by apocalyptic rhetoric, mostly written by Justice Stephen Breyer, exaggerating what was at stake while hysterically accusing the conservatives of seeking to "break [the] promise" of "true racial equality" made by Brown.

To the contrary, the incremental integration produced by the two race-based student assignment plans before the Court was slight. More broadly, the justices’ power to advance, or retard, progress toward "true racial equality" is modest in today’s world. A broad social consensus against legal subordination of minorities coexists with stubbornly persistent racial inequalities in education. These inequalities have outlasted decades of liberal Supreme Court decisions, of forced busing (which led to white flight), and of other integration programs far more aggressive than those in place now.

The dissenters nonetheless seemed eager to give local officials wide latitude to tell school children, in effect, "You can’t come to this school because you are the wrong color." More broadly, their approach would perpetuate into generations yet unborn the system of racial preferences for certain minorities that pervades much of American life.

The balance-tipper. Justice Anthony Kennedy, the centrist conservative who cast the deciding vote, wisely whacked the Roberts plurality for implying "an all-too-unyielding insistence that race cannot be a factor" in government decision-making, for being "too dismissive" of the governmental interests in promoting "equal opportunity regardless of race," and for complacency about "de facto resegregation in schooling." On the other hand, Kennedy noted that the dissenters’ embrace of racial classifications and preferences had no "principled limit."

But Kennedy’s effort to identify the circumstances in which "pernicious" race-based assignments could be justified as a "last resort" opened him to the charge (by Benjamin Wittes, writing in The New Republic Online) that he "announces no coherent rule that any school system could apply with confidence that it will garner Kennedy’s vote in the future by doing so."

This is not just a failure of imagination on Kennedy’s part. I doubt that anybody could come up with a very clear rule for steering between the conservatives’ view that all race-based student assignment plans are unconstitutional and the liberals’ broad approval of such programs.

So what’s a moderate to do? Focus on the facts, in my view, and hope that a reasonably coherent rule will emerge through case-by-case adjudication.

Under the precedents requiring that even the most benignly motivated racial classifications be "narrowly tailored" to advance a "compelling interest," Kennedy was probably correct to strike down Seattle’s crude use of race. But he should perhaps have sent the Louisville program back to the lower courts to clarify the record rather than striking it down based on confusion about exactly how it worked.

The dissenters accurately stressed that Seattle had reduced its reliance on race over time, ending up with a program that allowed all students to choose among 10 high schools but denied some their choices in order to engineer a prescribed racial mix. But the result was a program that produced only marginal increases in integration.

The program did not even touch elementary or middle schools, where the benefits of integration would be most profound. It barely touched Seattle’s two poorest, nearly all-black high schools. And when it was suspended because of lawsuits, the racial composition of Ballard High School (for one) barely budged. Between 2000, when race-based assignments were used, to 2005, when they were not, Ballard went from 10.8 percent to 9 percent black; from 10.7 to 11.7 percent Latino; from 17.5 to 14.2 percent Asian; and from 56.4 to 62.3 percent Caucasian.

For such tiny gains, officials adopted a program with glaring flaws:

•It imposed serious burdens on individual children in pursuit of a social-engineering goal that did no other child much good. An honor student named Andy Meeks, for example, asked to be placed in and was qualified for Ballard High’s special Biotechnology Career Academy, which seemed the best place for him to thrive despite his attention-deficit hyperactivity disorder and dyslexia. But because he was white, he was denied his first choice (and his second, and his third) and assigned to a school that he could reach only by taking three city buses, with a round-trip commute of more than four hours a day.

•The district "has failed to explain why, in a district composed of a diversity of races, with fewer than half of its students classified as ‘white,’ it has employed the crude racial categories of ‘white’ and ‘non-white’ as the basis for its assignment decisions," as Kennedy stressed.

•The program invited manipulation by allowing families to change their self-selected racial designations in order to go to the head of the line for assignment to their preferred schools. And some schools clearly had academic programs that others lacked.

•The school district has blessed a K-8 "African-American Academy" that is designed to be almost all-black so as to "increase academic achievement." As Justice Clarence Thomas noted in a concurrence, "Of course, if the Seattle school board were truly committed to the notion that diversity leads directly to educational benefits, [this] would be a shocking dereliction of its duty to educate the students enrolled in that school."

•One "desegregation and diversity" bureaucrat provided a taste of the political correctness that pervades the Seattle school system by posting on the schools’ website (until a few months ago) assertions that only whites can be racists and that "cultural racism" includes "emphasizing individualism as opposed to a more collective ideology," "defining one form of English as standard," and "having a future time orientation."

•This PC mind-set may help explain why Seattle has never seriously explored the most promising — and legally bulletproof — way to promote integration without discriminating based on race. That is to give underprivileged students, who are disproportionately black and Hispanic, the opportunity to transfer to (mostly white) middle-class schools. (See my December 9, 2006, NJ column.)

All nine justices seemed equally uninterested in this socioeconomic-integration alternative, which is now used by some 40 school districts that educate about 2.5 million students. I hope that this does not reflect the complacency of some conservatives about the isolation of poor children in inferior schools. I also hope that it does not reflect the preference of some liberals for making politically correct gestures about race over finding solutions that work.