Balkinization: Narrow Tailoring and Judicial Arrogance

Narrow Tailoring and Judicial Arrogance

Guest Blogger

Jim Ryan

University of Virginia

The plurality and Justice Kennedy agree that voluntary integration plans, in order to be upheld, have to be narrowly tailored to serve a compelling interest. What none explains sufficiently, however, is why they have to be narrowly tailored. The narrow tailoring requirement is imported from the affirmative action context, which involves employment and education decisions and policies made by various officials, some elected, some appointed. It might seem natural, at first blush, to apply the same requirement in the context of voluntary integration.

But there’s a big difference. For nearly 40 years, courts ordered integration under the guise of enforcing Brown. I may have missed something, but I don’t recall the Supreme Court ever saying that these court-created integration plans had to be narrowly tailored. True, quotas couldn’t be used (though numbers could be used as a starting point) and remedial plans were supposed to be temporary, but beyond that, there was no requirement that things like “race-neutral” measures be explored or that race-conscious measures be tried before racial classifications were used. Similarly, courts across the country divided students, just like the officials in Seattle and Louisville, into stark racial categories and assigned them based on (gasp) racial classifications.

Now you might think: well, it was fine for courts to rely so explicitly on race because they were remedying past discrimination. But that doesn’t get you very far. After all, remedying past discrimination was and is allowed, pursuant to the reasoning of the Court today, because doing so serves a compelling interest. So if lower courts were allowed to order integration because doing so served a compelling interest, why weren’t they required to narrowly tailor their plans?

Or more to the point, why are Seattle and Louisville, and countless other school districts, required to do so? Justice Kennedy, after all, agreed that overcoming racial isolation in schools is a compelling interest. If lower courts pursuing a compelling interest did not have to narrowly tailor their plans, one has to wonder why local officials must have to narrowly tailor theirs. The plurality and Justice Kennedy offer platitudes about how the overt use of race creates racial divisiveness, and Justice Kennedy talks about the mystical duality of the Equal Protection Clause, which both tolerates considerations of race but requires those considerations to be hidden from view. But the same dangers and the same duality, presumably, were at play when federal courts relied on race to assign students to school. Yet it was perfectly ok for courts to be overt in their use of race and to rely on explicit racial classifications to achieve the end of integration.

As far as I can tell, I don’t think this question is even recognized as a question, much less answered, by the plurality or Justice Kennedy. If you detect a whiff of hypocrisy and a sign of judicial arrogance here, I’m with you.

Posted 1:01 AM by Guest Blogger [link]

Comments:

I doubt that the five conservatives on the Court today ever would have ever arrogated the power to compel racial integration in the first instance, so I do not see how they could be hypocritical about requiring narrow tailoring now. Perhaps realizing their folly, I believe nearly every court has gotten out of the forced busing business.

# posted by

Bart DePalma : 11:33 PM

The Court is not hypocritical at all.

The courts are not responsible for creating and (unless part of a remedial plan) running schools. The fear that a particular government body will use race for ill purposes simply does not exist (at least anywhere to the same degree) with the judicial system as with the legislative. Courts can only institute such remedial actions as the result of litigation. The legislature has the proactive power to create and run such schools on their own. Their power is much greater and historically from where the troublesome uses or race has come from. The court's power is far more limited and circumscribed. Consequently, the scrutiny applied to the legislature and not the courts.

Now, I may seperately disagree with the remedial plans used by the the courts in the past -- but that is a different debate.

# posted by

humblelawstudent : 11:48 PM

"Bart" DePalma:

I doubt that the five conservatives on the Court today ever would have ever arrogated the power to compel racial integration in the first instance....

Oh. They would have said that Brown was wrongly decided?!?!? I don't think so.

Because, as Prof. Ryan points out (at least implicitly), that's just what the Brown court did when they said that school districts that resisted the enrollment of blacks must allow blacks to enroll.

Cheers,

# posted by

Arne Langsetmo : 6:26 AM

humblelawstudent:

The fear that a particular government body will use race for ill purposes simply does not exist (at least anywhere to the same degree) with the judicial system as with the legislative.

The fact that it's less likely doesn't affect the analysis when it does happen.

And, just as there were parents complaining about, and challenging in court, the Seattle school system assignments, there were parents complaining about the court ordered busing in such cases as Swann v. Charlotte-Mecklenburg, and Freeman v. Pitts.

Maybe what you and Prof. Ryan are getting at is that the court cannot find itself to have committed a wrong act and tell itself to not do what it told itself to do (or vice versa), at least without dropping the facade of precedent and a unitary court speaking ex cathedra for all time, and/or without overturning previous cases the result of rouge "discriminatory" Supreme Court justices.

Cheers,

# posted by

Arne Langsetmo : 6:43 AM

arne:

There is a quantum difference between ordering a local school system to treat all children the same regardless of race and admit black children to local schools and legislating a new busing system to ship children of both races around town to achieve racial integration, which is nowhere required by the Constitution.

# posted by

Bart DePalma : 8:41 AM

mr. depalma:

"there is a quantum difference between ordering a local school system to treat all children the same regardless of race and admit black school children and legislating a new busing system to ship children of both races around town to achieve racial integration, which is nowhere required by the Constitution".

ok, mr. depalma, humblelawstudent, charles, etc., i'll give you the chance. i personally have grown tired of those who criticize those who try to remedy a situation without offering their own proposed remedy. now is your chance. don't just criticize those who are trying.

we all agree that the constitution does state that schools cannot discriminate on the basis of race. we all further agree that the constitution does require that all students regardless of race are entitled to a certain level of education and opportunity. i also assume that we all agree that racism is a bad thing. finally, i also assume that we all agree that maximizing educational opportunities for all is a good thing, as study after study has shown that a solid educational environment, leads to advancement in opportunities over the course of a lifetime.

keeping in mind what i said in a related post below, that ignoring racism to cure racism perpetuates racism, how do you propose to integrate schools to maximize educational opportunities for all. keep in mind that i am not interested in hearing a "say nothing" answer that merely says you have to tailor a system that is racially color blind. tell me how you are going to do it.

finally, i would agree that the constitution does not say anything about forcing students to be bused around town; however, i would also note that it does guarantee a certain level of education, but is silent as to how to achieve that end. as such, if a system is put in place designed to meet those ends, i would propose that this system, provided it grants equal opportunity for all, is, in fact, constitutional.

# posted by

phg : 9:01 AM

"Bart" DePalma:

There is a quantum difference between ordering a local school system to treat all children the same regardless of race and admit black children to local schools and legislating a new busing system to ship children of both races around town to achieve racial integration, which is nowhere required by the Constitution.

I think I may pay attention to you, "Bart", on this, once you admit you were wrong about Brown II. Cure that, and maybe we'll be on common ground.

Cheers,

# posted by

Arne Langsetmo : 9:58 AM

we all further agree that the constitution does require that all students regardless of race are entitled to a certain level of education and opportunity.

I seriously doubt most conservatives agree with this.

i would agree that the constitution does not say anything about forcing students to be bused around town; however, i would also note that it does guarantee a certain level of education, but is silent as to how to achieve that end.

Consider this plan: Every student in the district gets put into a pool. Names for each school are drawn randomly. If the pupil is assigned to a school other than his/her neighborhood school, s/he gets bus transportation to the school.

Is there any constitutional objection to this plan?

# posted by

Mark Field : 11:09 AM

The random method falls because it would impose undue inconvenience on the students and their families and undue cost on the districts.

The logic of this situation is really very simple: if districts are not allowed to consider racial balance as a means of allocating students to schools, then individual choice, academic considerations, and location will be the primary considerations.

All these will perpetuate and most likely will enhance racial and economic segregation. If you think this will keep any conservatives awake for thirty extra seconds some night, you don't know any conservatives.

# posted by

C2H50H : 11:55 AM

Or how about this? When you enroll your child, you check a box indicating affirmatively whether you want your child to be enrolled in racially diverse school. If you check yes, that's what you get. If you check no, then that's what you get. And schools in category no. 1 are in the best neighborhoods by the way. The assignments would not be made based on race, but rather on the basis of parents' desire to send their children to a racially balanced school. Something altogether different.

Or assign by what day of the week the kid was born on.

# posted by

Anonymous : 11:55 AM

The random method falls because it would impose undue inconvenience on the students and their families and undue cost on the districts.

In large cities, that's likely true. But it could be practical in smaller to medium cities.

But that wasn't really my point. My question went to the Constitutional validity of such a plan. As far as I know, there is no such objection to it.

# posted by

Mark Field : 12:32 PM

phg said...

mr. depalma: "there is a quantum difference between ordering a local school system to treat all children the same regardless of race and admit black school children and legislating a new busing system to ship children of both races around town to achieve racial integration, which is nowhere required by the Constitution".

ok, mr. depalma, humblelawstudent, charles, etc., i'll give you the chance. i personally have grown tired of those who criticize those who try to remedy a situation without offering their own proposed remedy. now is your chance. don't just criticize those who are trying.

we all agree that the constitution does state that schools cannot discriminate on the basis of race...i also assume that we all agree that racism is a bad thing.

I would contend that we are far from such an agreement here. I believe nearly every professor who has posted on the subject and a good many of the visitors indicate that they believe the 14th Amendment permits racial discrimination so long as the intent is "good."

we all further agree that the constitution does require that all students regardless of race are entitled to a certain level of education and opportunity.

Actually, this is a minority view among courts which has had a recent limited resurgence. I am of mixed feelings about this issue. I can see a very good EPC argument being advanced for this proposition. However, on a practical level, spending the same amount of money for each student across a state like NY with very expensive cities and far less expensive rural areas means that either a city student will not get enough money or a rural school district will go bankrupt offering their students the same amount of money necessary to educate a child in NYC.

finally, i also assume that we all agree that maximizing educational opportunities for all is a good thing, as study after study has shown that a solid educational environment, leads to advancement in opportunities over the course of a lifetime.

Given this college audience, this will not be a popular view, but I would argue that education is simply another human need like food, shelter, employment, etc and the resources given to education have to be measured against other needs. One does not have the right to the best possible education any more than one has a right to a daily dinner at the finest French restaurant in town. We live in a world with finite resources which have to be allocated the best we can manage.

keeping in mind what i said in a related post below, that ignoring racism to cure racism perpetuates racism, how do you propose to integrate schools to maximize educational opportunities for all.

Provide students tuition and force schools to compete for students. If racial diversity is the obvious and substantial educational or social benefit which you and others here contend, then schools which offer such diversity will attract more students than those who do not.

In reality, I would suggest that diversity is far down the list of educational benefits which parents would seek if everyone (not just the rich) had the ability to choose their children's schools.

The quality of instruction would top my list followed by the cost and the ease of getting my child to school. If the school was also diverse, so much the better. However, I would not sacrifice the other benefits to achieve diversity.

Perhaps you have a different set of priorities. So much the better. In a free market educational system, we both have the freedom to meet our own priorities.

In short, freedom of choice is my solution. Of course, as a classical liberal / libertarian about most things, I think that freedom to do nearly anything which does not harm someone else is nearly always the solution. However, I would contend that the objectively observed success of freedom where it is tried supports my world view.

# posted by

Bart DePalma : 12:28 PM

# posted by

Unknown : 12:35 PM