Balkinization  

Wednesday, July 04, 2007

Reading the School Integration Cases Like a Lawyer

Mark Tushnet

Let's say you wanted to treat the Supreme Court's school integration cases as if they were, well, law. (I know that's not au fait, but indulge me.) Obviously, Justice Kennedy's opinion is the one to focus on. What does he say?

Justice Kennedy's opinion has, for purposes of treating it as law, two parts, conveniently labeled Part I and Part II, Most people have focused on Part II. There Justice Kennedy says that some race-conscious policies are constitutionally permissible: site selection, outreach, differential funding aimed at achieving race-conscious goals. These are not trivial conclusions as law, although Justice Kennedy says almost nothing to explain how his conclusions are consistent with prior law. (Race-conscious site selection designed to maintain racial separation in the schools is paradigmatically a constitutional violation, and, after all, the Chief Justice tells us that the way to stop discriminating is to stop discriminating.) One of Justice Thomas's last opinions as a court of appeals judge (released after his confirmation) held that race-conscious outreach was unconstitutional. And, prior to the Michigan affirmative action cases, there was a substantial question, to which Richard Primus and Kim Forde-Mazrui devoted major articles, about whether race-neutral policies selected to achieve race-conscious goals were constitutionally permissible. All that is by the boards now -- these policies are constitutionally permissible.

I find Part I more interesting. That is where Justice Kennedy explains why, in his view, the Seattle and Louisville policies are unconstitutional. And, again treating this part as law, his reasons identify quite limited flaws in the policies. He identifies two (or two-and-a-half) flaws. First, Seattle's policy uses a racial binary in a situation where it appears reasonable to use a more differentiated set of racial categories. Second, the policies are confusing -- or, as Justice Kennedy puts it, they do not describe "in detail, how decisions based on an individual student's race are made." Later he uses the terms "contradictions and confusions." In Louisville, the problem is that the school board "fails to make clear . . . whether . . .[it uses race] in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest."

Now, from a lawyer's point of view, these are easily remediable flaws. School boards can redefine the categories used in their policies aimed at overcoming racial isolation, and then -- at least if that's the only problem with their plans -- use race as a criterion for assigning students to schools. (Justice Kennedy does hint that he thinks there are other flaws in Seattle's policy, but he does not identify them -- and so, treating his opinion as law, the only identified legal problem with Seattle's policy is its use of the racial binary.) And, even more, it is open to a school board to argue that its situation is unlike that in Seattle, and that, given the racial composition of its schools, the racial binary is appropriate. Indeed, Justice Kennedy does not say that Louisville's use of the racial binary is a flaw that leads him to conclude that its policy is unconstitutional. Eliminating unclarity and confusion should be easy as well.

Justice Kennedy is less clear about the final reason the policies are unconstitutional, but I read his opinion as saying that the boards had achieved substantial integration without using race as a criterion for student assignments. The marginal gains in integration were too small to justify the race-based component of the boards' overall policies. (This is a theme in the plurality opinion as well, but of course that opinion denies that gains of any size in integration can justify race-based student assignments.) On this reading, a school board could justify its race-based student assignment policy by showing that it could not achieve substanatial integration by the means Justice Kennedy identifies in Part II. So, for example, it is relevant to the defense of a race-based student assignment policy that Seattle has constructed only new high school in the past 44 years, according to Justice Breyer, and that site seleciton policies will not have any significant effect on achieving integration. Similar showings might be developed for other proposed policies to replace race-based student assignment policies.

Of course one might say that Justice kennedy is hiding the ball, and that he would never read his own opinion in a way as generous to race-based assignment policies as I have suggested. The rhetoric he uses to criticize the dissent suggests that Justice Kennedy has deeper concerns about race-based student assignment policies. Maybe so, but the parts of the opinoin explainng why these particular programs are unconstitutional clearly make available the arguments I have sketched here. And it is the opinion, not our guesses about Justice Kennedy's unexpressed views, that is the law. (Even a hard-nosed legal realist, who thinks the law is what we can predict Justice Kennedy would do, would have to acknowledge that Justice Kennedy is not going to be on the Court forever, and that by the time the next case raising these issues arrives, there may be other justices, who will interpret the opinion, and not try to read their retired or deceased predecessor's mind.) As law, Justice Kennedy's opinion is, or can fairly be read to be, quite narrow.

Comments:

Agreed. One other thing: Kennedy's controlling opinion leaves a lot of room for judges in the lower courts to uphold such programs if they're inclined to do so. That could have a big impact on the practical reality of what happens between now and the time SCOTUS next decides a case on this issue.
 

This all seems like a fair reading (though probably not, as you suggest, the one Kennedy would choose).

But aren't all the bits of Kennedy's opinion about the race-conscious policies that would be allowed _dicta_ rather than "the law"? I think they're very important dicta, and they are effectively controlling in the legal-realist-prediction sense.

But if that's the only sense in which they're controlling, why would a future justice feel constrained by them?
 

I'm glad that you mentioned Thomas' opinion finding race-conscious outreach unconstitutional. Janice Rogers Brown had a similar opinion on the California Supreme Court interpreting Proposition 209.

It's a nice refutation to those conservatives who claim that the counterrevolution is just about racial preferences (which they characterize as discrimination) and not about any minority outreach.
 

Dilan,

That's disingenuous. Although the program at issue in the Hi-Voltage case used the term "outreach," the policy effectively required preferences. There was a quota that contractors had to fulfill to bid on a contract. If they did not, then they had to contact at least four minority/women owned businesses at least three times each to solicit their subcontract bids, and had to accept those subcontract bids if they were made.

In other words, hire subcontractors according to a racial quota, or fulfill burdensome requirements.

Hi-Voltage didn't do this because it didn't have plan to use any subcontractors -- but its bid was still rejected on the grounds that it hadn't given special treatment to minority businesses.


That's not what most people think of when they hear the term "outreach." They think of requirements, e.g., that openings be publicized so that everyone, not just insiders, has the chance to apply. Or efforts by government to recruit at majority-black schools rather than just white ones.

If the San Jose program had required all contractors -- not just those who hadn't filled the racial quota -- to publicize generally the opportunity to bid for subcontracts, that would have been race-neutral.

Oh, and while JRB wrote the opinion, liberal Stanley Mosk concurred.
 

Kennedy's controlling opinion leaves a lot of room for judges in the lower courts to uphold such programs if they're inclined to do so.

I think you're missing Tushnet's point. While it is true that Kennedy explicitly leaves room for many "other means," jr rightly questions how much of that allowance is actually binding law. However interesting all of this discussion about what Kennedy has allowed is, the real point of the original post is that as a matter of law Kennedy has actually prohibited remarkably little. A cautious and deferential school district might well choose one of the options off from Kennedy's pre-approved list, but there is nothing in the law of Kennedy's opinion preventing a more assertive and aggressive school district from legitimately defending their racial balancing program by staying well short of Kennedy's preferences and making only very minimal adjustments to avoid the modest few problems that Kennedy actually finds with the Seattle and Louisville programs.

Just because Kennedy has charted out a safe harbor, that doesn't mean that the law of his opinion makes use of that harbor required or all other options unconstitutional.
 

Actually, a race neutral student selection process could succeed in integrating K-12 where it usually fails in competitive colleges because K-12 schools usually are not seeking to maintain standards of academic achievement for their student bodies. Therefore, the racial differentials in academic performance would not come into play.

So long as all races have the same level of interest in a school, a K-12 system can use a lottery for admission into a particular school and achieve substantial racial integration without engaging in racial discrimination.

A race neutral lottery system would only fail in achieving the racial integration if one or more of the races simply are not interested in attending a particular school or schools. In that case, you are dealing with self segregation and the conflict is between the desires of the czars of social engineering and the parents of the students themselves. Forcing parents to send their children to schools against their will is not a compelling government interest.
 

Forcing parents to send their children to schools against their will is not a compelling government interest.

That's right, compulsory education, truant officers, and the like are all gross oversteps by the government.

Or perhaps you are just inelegantly trying to suggest that the government should not require any parents to send their children to a public school that is not their first choice? Of course, your proposed "other means" of lottery selection doesn't resolve that perceived evil. Such a discussion of "other means" is also within the gamut of Kennedy's Part II, and not particularly relevant to the present discussion of the scope of Part I.
 

Professor Tushnet,

I recall, on first seeing the bifurcated "white/non-white" distinction, thinking, "What's all the shouting about? Of course that's inadequate." So I was pleased to see Justice Kennedy put a little extra weight in that area.

Where I was disappointed was that Kennedy let stand the misconception that race was in any way a unitary criterion. The individual instance of the dyslexic child who was turned away from his school of choice made clear there were other criteria in play, of which race was only one.

Another problem not addressed is the majority misrepresentation embodied in the phrase, "working backwards from the numbers." This seemed to connote that the schools were trying to achieve specific values. Instead there was a designated range which allowed disproportionate representation...up to a point, after which threshold was reached race might be considered with other factors. There is a substantive difference between saying "We're aiming for such-and-such a mix," and saying "We're aiming to preclude unacceptable levels of over-representation." The government can arguably be deemed to have a compelling interest in preventing such over-representation and using race as part of a criteria set is in no way unreasonable in such a context. It is not credibly arguable that race awareness in such a setting violates the color-blind Constitution...unless the census itself be deemed to do so.

Still, assuming my voice were heard and my views deemed credible, the bifurcated white/non-white distinction was so poorly contrived as to, in my mind, make most of the rest of the conversation moot. As you point out, there seems a credible inference that if that problem were fixed the rest of the plan might well be acceptable under Kennedy's opinion.

Thanks always for sharing in the public venue where strangers can so easily interact.

Peace.
 

A race neutral lottery system would only fail in achieving the racial integration if one or more of the races simply are not interested in attending a particular school or schools.

Races are not social agents, they are socially constructed categories. As such, races cannot be interested in anything, let alone attending a particular school. If your point is to emphasize choice or decision, do so at the individual or institutional levels.

K-12 schools usually are not seeking to maintain standards of academic achievement for their student bodies.

Well, that's simply not true on a number of levels. NCLB, and outcome-oriented approaches in general, has made the very survival of a school contingent on its ability to meet standards of academic achievement.

In addition, metropolitan area districts often have specialized schools for students of different ability and interests. For example, Chicago has 7 categories of high school: neighborhood, magnet, small, charter, selective enrollment, military academy, and special education school. The process for enrolling your child differs by type; some enrollments are automatic by proximity to the home, others use random lottery methods or methods designed to assure that the student has high enough test scores, that siblings attend the same school, that diversity is maintained, etc.

Furthermore, the schools are ranked by their outcomes (how many students graduate, how many go on to college), as well as their academic progress (average ACT scores, NCLB & state standards compliance, etc.)--all of which is made available to the parents.

To be clear, I'm not holding this up as a perfect system that ought to be emulated, but the notion that K-12 schools aren't trying to maintain academic achievement is simply outdated.
 

PMS_Chicago: Races are not social agents, they are socially constructed categories.

I'll have to think about this. There's a distinction I have in mind, the difference between legal sanity and "medical" psycho-pathology. Certainly there is increasing overlap, but the former comes to us from the tradition of the common law, the latter comes to us from the post-industrialization scientific (and psuedo-scientific, ala Frued) notions of mind and mental health. But the legal definition prevails in court.

Likewise with race? Consider this, from the Wikipedia entry on Loving v. Virginia:

---begin quoted---
The trial judge in the case, Leon Bazile, echoing Johann Friedrich Blumenbach's 18th-century interpretation of race, proclaimed that

Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
---end quoted---

I haven't yet read Loving, but think it safe to say it served to effectively repudiate the italicized text. Still, that's probably a fair summary of the historical common law in the area, don't you think? And it would be controlling law if Loving had been decided differently, with no inkling of anything so progressive as "socially constructed categories".

What is clear is that there are haves and have-nots, and that the have-nots are often treated as 2nd class citizens or worse and that the duty of patriots everywhere is to amend such circumstances so that "We the people..." can arguably be claimed to include _all_ people, not just the ones who happen to look a bit like us. Old fashioned notions of race are probably an unavoidable language for the debate, inexact and inapt and factually inaccurate as such language truly is. The haves benefit too much from current conceptualizations to permit a change of frame.
 

David Nieporent:

It is true that one could certainly come to the RESULT that JRB did in the Hi-Voltage case on the grounds that the program was a disguised racial quota, but her opinion went quite a bit further and held that Proposition 209 restored the "original" meaning of the Civil Rights Act of 1964 which meant no preferences, no outreach, no nothing. It was complete bunk.

As for Mosk concurring, I can only say that Justice Douglas, possibly the single most liberal justice ever to sit on the Supreme Court, dissented in DeFunis v. Overgaard and thought that all affirmative action programs were unconstitutional. That doesn't mean that they are right or wrong, just that judges from earlier generations don't always line up on the liberal-conservative scale on this issue.
 

"though probably not, as you suggest, the one Kennedy would choose"

If so, it's a bit fictional, isn't it? We are supposed to ignore what Kennedy "probably" meant for some textualist concotion that hey fits the opinion, at least literally. This, I dare say, sounds dubious. Why exactly do we think K. would uphold it in the future?

This does underline the corruptness of the proceedings. As one noted, the race conscious dicta is just that. The lower court judge can spin the opinion in various ways. The plurality, after all, showed how precedents can be played with for desired effect.

And, the opinion is Janus-like. It suggests one thing while damning Breyer for taking the ball and running with it. If race consciousness is so fine and the only problem is soooo easily fixed, why not clearly say so?

Heck, Breyer has shown he is game for compromise to get a core end like race conscious programs upheld! Even if it means hindering his beloved sentencing guidelines. (see also Hamdi ... he joined the plurality, not Souter or Stevens).

But, Kennedy didn't do that. Has he ever joined a race conscious opinion? He dissented in the AA case in college admissions. Let's see what happens if someone actually takes this post's inviation at face value.
 

While I agree that J. Kennedy's opinion can be read fairly narrowly, as a practical matter try to convince trial courts of that. I am going out on a huge limb here (snark)...Kennedy's opinion is NOT the one the vast majority are going to be citing to. It is Roberts' simple-minded, jingoistic "we gotta' stop discriminatin' to stop the discriminatin'" that they will sink their octogenarian teeth into.
 

Der Schatten:Roberts' simple-minded, jingoistic "we gotta' stop discriminatin' to stop the discriminatin'" that they will sink their octogenarian teeth into.

At least he's given us a nice quote for when we're fighting racial profiling by the TSA next time the issue comes up.
 

Does the outcome in the case raise any difficulties for the expanding number of urban school systems making noises about experimenting with single-gender schools? If the outcome says you cannot use race as the determinative factor (tie-breaker) and you cannot tell a kid that you can't attend this school solely because of your race, what about telling a kid you cannot attend this school because of your sex?
 

Does the outcome in the case raise any difficulties for the expanding number of urban school systems making noises about experimenting with single-gender schools? If the outcome says you cannot use race as the determinative factor (tie-breaker) and you cannot tell a kid that you can't attend this school solely because of your race, what about telling a kid you cannot attend this school because of your sex?

The cynic in me says that this decision will have zero effect on single sex schools. I say this because, in general, the issue of sex discrimination provides a good litmus test of the hypocrisy of the "race neutral" interpretation. The language of the 14th A, of course, is identical whether the issue is race or sex, but this Court seems pretty unlikely to strike down single sex bathrooms in schools on the ground that state actions must be "sex neutral".
 

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