Back in the day, this country was even more segregated by race than it is today. Then came Brown v. Board of Education (1954) which held that separate was inherently unequal. The South put up "massive resistance" to forced integration, opening up private and church schools to keep the races separate. In those days there were only two races, black and white. Today we are conscious of many more.
Forced busing, which is what forced integration often translated to, forced white parents to flee to the suburbs so that their kids didn't have to go to school with black kids. There have been decades of litigation in which U.S. District Courts have assumed the responsibility of overseeing that schools achieve a reasonable racial balance within a reasonable time. For some parents that meant "Never."
Today we see the issue of racial integration in publicly funded education at all levels (most public schools accept some federal funding, if only for the lunch program) appearing in a new form: affirmative action.
Affirmative action refers to government plans to overcome past official racial discrimination whether by law or in fact (de jure or de facto) by setting up special programs that give preferences to blacks in hiring, obtaining public contracts, and in education.
If the University of California Medical School only has 100 openings for medical students, and blacks have a quota of seats reserved for them, or are awarded bonus points on account of race, is this a noble effort to achieve racial balance and overcome past discrimination, or is it unfair discrimination on account of race, at least to the whites who either lose out or feel the game is stacked against them and in favor of blacks.
That was the Bakke case in 1974 (check the date) when the court divided four to four on the issue but Justice Lewis Powell decided that a little bit of racial preferment would be okay to promote racial diversity in education, so long as the program did not amount to an ascertainable quota or set of bonus points.
For the next quarter century plus, university admissions officers could give the admissions nod to blacks on the basis of race over equally qualified whites. What happened to mixed-race kids I have no idea.
But a few years ago a young white woman named Grutter applied to the University of Michigan law school but was rejected in favor of blacks who had been awarded racial points. Grutter felt she was more qualified and protested that she was the victim of reverse racial discrimination because she was white. Her argument was that a publicly funded university may not treat her less than as equal on account of race.
In another five to four decision, with the tip-weight being Justice Sandra Day O'Connor, the Court held that public universities could take race into account to achieve racial balance provided it wasn't done so crassly as to award points or seats as in a quota based on race. The main reason seems to have been that the military services weighed in with a strong amicus brief arguing that the Army had a bad experience in Vietnam, with black soldiers led by white officers who failed to communicate or command respect. Result: fragging incidents against the officers. In order to achieve a balanced officer corps in the event of another major war requiring the nation to mobilize millions of soldiers, there had better be a diverse officer corps. And where do officers come from? The college ranks. So we had better make sure that the colleges are reasonably integrated.
Justice O'Connor sided with the four who voted in favor of a little bit of racial balancing being okay. But hopefully, she said, this wouldn't be necessary in another 25 years. This is no time at all in constitutional law terms. It's like two weeks. Is this country going to overcome its racial biases in two weeks? I doubt it, despite whatever progress you can point to.
Last week the issue returned to the Court and here we see a good idea turned around on itself. If segregation by race was bad in 1954, and integration by race has been good ever since, what happens when integration produces victims of racial decision-making such that they can plausibly maintain that they are not being treated equally, but are victims of racial discrimination in reverse.
A leader in the fight against institutionalized reverse discrimination is Ward Connerly, who served as a University of California regent, where he observed that the affirmative action program allowed under Bakke was producing a form of racial politics in university admissions and other areas. He thus promoted a ballot proposition to forbid the State of California from using race to award admissions to schools, public contracts, and employment, such as police and fire-fighting jobs where protests often come up. His argument is that black students who accept racial preferences are thereafter stigmatized, as are blacks who don't but who succeed in head-to-head competition. He also points out that affirmative action programs punish the wrong people and reward the wrong people, since we've come down the road apiece since the days of slavery and Jim Crow. Since he believes that minority groups are every bit as capable of competing as others, they should get on with it and not rely on artificial aids which only serve to hamper them in the long run.
Connerly's initiative won in California and I believe in Oregon. It also won in November in Michigan, Ms. Grutter having invited him to lead the fight for equality and against affirmative action there.
Linda Greenhouse of the New York Times has an account of the argument in the current case below:
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Court Reviews Race as Factor in School Plans
Court Reviews Race as Factor in School Plans
WASHINGTON, Dec. 4 — By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional.
There seemed little prospect that either the Louisville, Ky., or Seattle plans would survive the hostile scrutiny of the court’s new majority. In each system, students are offered a choice of schools but can be denied admission based on their race if enrolling at a particular school would upset the racial balance.
At its most profound, the debate among the justices was over whether measures designed to maintain or achieve integration should be subjected to the same harsh scrutiny to which Brown v. Board of Education subjected the regime of official segregation. In the view of the conservative majority, the answer was yes.
While there is no reliable data on how common these plans are, they are thought to be widespread among school districts where residential patterns would otherwise produce neighborhood schools of one race or nearly so. Depending on how broadly the court rules, possibly hundreds of districts would need to modify or scrap voluntary integration plans.
The National School Boards Association as well as the Council of the Great City Schools, representing 66 urban districts, filed briefs on behalf of Seattle and Louisville, warning of impending disruption if the justices overturn the lower court rulings that upheld the two plans.
The Supreme Court had declined to review a similar voluntary integration plan in Massachusetts last year, shortly before the retirement of Justice Sandra Day O’Connor and the arrival of Justice Samuel A. Alito Jr. But in June, after weeks of internal debate, the justices accepted these two appeals.
One was filed by a white woman in Louisville whose son was denied a transfer to attend kindergarten in a school that needed black rather than white students in order to keep its black population at the district’s required minimum of 15 percent.
The other was filed by parents in Seattle who organized as a corporation to oppose the plan there, which applies only to the city’s 10 high schools. A racial “tiebreaker,” used when a high school attracts more students than there are places, intends to keep the schools within 15 percent of the district’s overall makeup, which is 60 percent nonwhite.
Before the arguments on Monday, the challenge for the school board lawyers defending the plans, along with their allies in the civil rights community, had appeared to be to persuade the justices that the appropriate analogy was not to affirmative action, a freighted subject for the court in which benefits are bestowed on one group and withheld from another, but rather to integration, in which the goal is to educate everyone as equally as possible.
But by the end of the tense two hours of argument, that effort had not so much failed as it had become irrelevant. Lawyers for the school systems found themselves struggling, under the justices’ questioning, to meet the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education.
For example, Michael F. Madden, the Seattle district’s lawyer, tried to argue that because the Seattle high schools were “basically comparable,” and “everyone gets a seat,” the court should not view the plan as “a selective or merit-based system where we adjudge one student to be better than the other.”
It was, Mr. Madden said, “a distributive system” that was “quite wholly dissimilar to a merit or selective-based system.”
Chief Justice John G. Roberts Jr. countered, “Saying that this doesn’t involve individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color and not any other factor.”
He added: “I mean, everyone got a seat in Brown as well. But because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there’s no problem here because everybody gets a seat distinguishable?”
“Because segregation is harmful,” Mr. Madden replied.
“It’s an assignment on the basis of race, correct?” the chief justice persisted.
It was, Mr. Madden replied as his 30 minutes ran out and the red light came on, an effort “to bring students together in a mix that is not too far from their community.”
As the arguments proceeded, the court’s more liberal members appeared increasingly and visibly dispirited. Justice Ruth Bader Ginsburg tried unsuccessfully to turn the chief justice’s colloquy with Mr. Madden in a different direction. The question of whether “using racial integration is the same as segregation,” she said, was “pretty far from the kind of headlines that attended the Brown decision.”
Bringing “white and black children together on the same school bench,” Justice Ginsburg continued, “seems to be worlds apart from saying we’ll separate them.”
Justice Stephen G. Breyer let his frustration show in several exchanges with Solicitor General Paul D. Clement, who argued the Bush administration’s position as a “friend of the court” for the challengers and against the school systems in both cases.
“Think, go back to Cooper v. Aaron,” Justice Breyer told the solicitor general, referring during the argument in the Louisville case to the court’s 1958 decision enforcing a desegregation order in Little Rock, Ark. “Go back to the case where this court with paratroopers had to use tremendous means to get those children into the school. That’s because the society was divided.”
He continued: “Here we have a society, black and white, who elect school board members who together have voted to have this form of integration. Why, given that change in society, which is a good one, how can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the black children out of the school?”
“Well, I understand that, Justice Breyer,” Mr. Clement said. “But I think the answer to that is that the lesson of history in this area is that racial classifications are not ones where we should just let local school board officials do what they think is right.”
The Louisville plan, adopted in 2000 as the formerly segregated district emerged from 25 years of federal court supervision, provides that all schools should have a black student enrollment of no lower than 15 percent and no greater than 50 percent. The district as a whole, which includes suburban areas of Jefferson County as well as the city of Louisville, is about one-third black.
Mr. Clement said the 15-to-50-percent range was a “strict racial band” that was not sufficiently “narrowly tailored” to satisfy the “strict scrutiny” to which the court’s precedents subject government actions that are based on race. The administration’s position is that those choosing to adjust the racial balance in their schools should do so by “race-neutral means,” like magnet schools that attract children across racial lines.
“There’s a fundamental difference between whether or not the policy manages to avoid classifying people on the basis of their race,” the solicitor general said.
Justice David H. Souter asked Mr. Clement why this position was not just another way of saying that “the important thing is simply to hide the ball.” If improving the racial mix was the objective, Justice Souter asked, “why can’t they do that candidly?”
There were “several responses,” Mr. Clement answered. “One is that the Constitution puts a particular premium on avoiding express racial classifications.”
Justice Anthony M. Kennedy asked the lawyers a series of questions designed to test the outer reaches of their positions. Could a school district deliberately place a new school in a location designed to supply a racially mixed student body, he asked, and appeared displeased when Harry J. F. Korrell, the lawyer representing the parents challenging the Seattle plan, answered no.
While his questions suggested that he would not rule out any and all policies undertaken with a knowledge of the probable racial consequences, Justice Kennedy made clear his distaste for the policies at issue in these cases, Parents Involved in Community Schools v. Seattle School District, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.
To Mr. Madden, the Seattle district’s lawyer, Justice Kennedy said that unlike magnet schools, special resources, or school location decisions, “you’re characterizing each student by reason of the color of his or her skin.”
He continued: “That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.”
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