In my comments, I noted the absurdity of Solicitor General Paul Clement's assertion that governments have a compelling interest in ending racial segregation, so long as they don't think about race. The good news is that, according to Court-watcher Lyle Denniston, Justice Kennedy thought it was a bit silly too. The bad news is Denniston thinks that by and large Kennedy was hostile to the Seattle and Louisville plans, and predicts a 5-4 decision against their constitutionality.
BlackProf's Christopher Bracey has a set of potent quotables from the oral arguments.
Scott Lemiuex and Publius both have excellent posts up dealing with the way originalism gets selectively applied in law. There is little to no evidence that the 14th amendment envisioned a "color-blind constitution", so, as Publius states, orignalists have to move to ever greater levels of abstraction to justify the amazing synergy between their policy preferences and "the law." But when abstracting outwards would lead to policies orignalists disfavor, they move back down into the specific and interpret in that manner. It's all very arbitrary and very partisan, which wouldn't be notable except that originalists obsessively trumpet how objective and grounded their interpretation is, which is simply untrue.
Several people asked me to cite the studies showcasing benefits of a diverse education. The brief on behalf of the American Educational Research Association has it. The specific arguments are too long to excerpt, but the summary of their conclusions is roughly as follows:
Research studies have shown that racial diversity in elementary and secondary education leads to important short-term and long-term benefits for students of all racial backgrounds. Among these benefits are improved cross-racial understanding; the reduction of stereotyping and prejudice; gains in student achievement; a strong sense of civic engagement and willingness to live and work in diverse settings; and better preparation for higher education, work, and participation in a diverse society. Not only do diverse schools benefit students as individuals, they also promote social cohesion and reinforce democratic values that this Court has long recognized as foundations for good citizenship. (3-4)
The brief also specifically attacks several other briefs (most notably the brief of Armor et al as presenting incomplete, outdated, or misleading research. I admittedly did not do a close read, but my understanding of Armor's argument is that the relationship between school desegregation and performance is largely inconclusive, while the AERA maintains that these studies are outliers many more recent studies have found the relationship to be viable. It is also worth noting that the Armor brief, which was on behalf of three social scientists, was the only brief for the petitioners (the anti-integration side) I saw that specifically dealt with the issue of the social science research. By contrast, in addition to the AERA brief, several other major briefs supported the respondents' conception of the research, including the American Psychological Organization, the The National Education Association, and an umbrella brief filed by 553 Social Scientists. There were too many briefs to read through in entirity (see the whole list here)--I looked for briefs that appeared to be from either national non-partisan non-ideological organizations (e.g., the APA) or from specific social scientists (e.g., Armor et al). The weight of scholarly opinion seems to be overwhelmingly of the belief that diverse schooling provides important, tangible, and beneficial educational and social impacts. As the AERA puts it:
Unanimity is rare in any body of scientific research, but there is substantial agreement that the best available research evidence, which is composed of studies employing sound and reliable methodologies, solidly supports the Respondent school districts in these cases.
The only two briefs the AERA cites for the opposing position are the Armor brief and a brief that I could not find from Drs. Murphy, Rossell, and Walberg, whose arguments they address in their own brief.
Less "hot" than the issue of social science research, but still interesting, was that the Anti-Defamation League intervened for the first time in 60 years on the side of a race-conscious program (that is, in favor of the respondents). Also worthy of note is this brief, also in favor of the respondents, by several former high-ranking military and defense department officials.
Apparently a rather interesting lawyer argued the case for the petitioners out of Louisville. Even still, Will Baude thinks that he did fine at Oral, and that at least he didn't hurt his side too much.
WaPo coverage, and WaPo editorial.
I was pleased to see that many local students--high school and college--came out to protest and show their support for integrated schooling. Alas, in the through-the-looking-glass world we now live in, support for integration now makes one a racist. Dr. King would be appalled, indeed.
14 comments:
Using race to decide who may go and who may not go to a school is racist. There is no way around that.
In Seattle the goal is to make the racial mix of the schools reflect the racial mix of the neighborhood. That's not a bad goal by itself, but the best way to do that isn't by using race as a factor to decide who may go to the schools.
Seattle allows parents to request that their child go to any school in the district, rather than to a neighborhood school. This is a costly scheme that has people trying to get into schools in neighborhoods where they don't live. When too many parents want their child to go to a particular school, race is used to decide who may go.
The school district would be better off fixing the less popular schools and using a traditional approach where students go to their neighborhood schools. This would cost significantly less in the long run, and meet the district's goals of having the school's racial mix reflect the neighborhoods racial mix. It would also do it without introducing institutionalized racism into the mix.
"Using race to decide who may go and who may not go to a school is racist. There is no way around that."
Why? You need to warrant that statement. There is a fair amount of anti-racism literature and scholarship that strongly indicts that line of reasoning, from both theoretical and practical standpoints. They would counter and say that a system in which Black students and White students largely attend separate schools is what is racist, not race-conscious attempts to remedy it. And again, I think it is quite perverse to put race-conscious efforts at remedying segregation in the same category as segregation itself.
Your neighborhood schooling proposal falters because of massive housing segregation patterns. It seems both intuitively and empirically true that racism cannot be fought without noticing race.
From the American Heritage Dictionary definition of the term Racism (second entry):
Discrimination or prejudice based on race.
I stand by my statement. Using race to decide an issue is by definition racist.
Brown vs. Board of Education remedied conscious institutionalized racism. In that case, black students were prohibited by law from attending white schools.
Today in Seattle, white and asian students are told that they may not attend schools in predominantly black neighborhoods based on their race.
What was racist then is still racist today.
First of all, you have Seattle's program backwards. A few White students are by and large prevented from attending a majority-WHITE school, not a majority Black one.
Second, what about the first definition that you don't cite? The first definiton (from AHD): "The belief that race accounts for differences in human character or ability and that a particular race is superior to others."
So at worst, Seattle's program violates the second definition of racism, while combating the first (empirically, diverse schooling fights against the perceptions that race is a primary determinant of human capacities and that these differences manifest themselves in superior and inferior races). You don't give any reason to default to the second definition over the first, and I'd argue that empirically the former has had a far more pernicious effect than the latter and thus is more important to fight if it is either-or.
But I'm still not seeing how its racist even under your definition. Discrimination is, according to AHD: "Treatment or consideration based on class or category rather than individual merit; partiality or prejudice." The Seattle and Louisville plans are meritorous on the axis they are looking for (a diverse student body), each student is accepted or rejected based on how well they can fulfill that goal. Nor are the plans prejudicial to anyone just because they notice race. They do not in any way impute the inferiority of one race to another, or say that race is determinative of capabilities, or any such thing.
Indeed, if we are to follow your lead and collapse noticing race into racism, then the concept of racism is racist, because the very idea that there can be a race to be racist against requires the conceptual category of race that we're trying to avoid. In a literal sense, your outlook would tag the Civil Rights Act and Voting Rights Act as racist, since they both were trying to remedy an inequity based on the race of the participants. More theoretically, your conception is internally incoherent and would make the very act of calling something racist racist. There's a deep performative contradiction in your advocacy that nullifies it. The way out is to adhere to the original conception of racism (the #1 definition), which is about the belief in and establishment of superior and inferior races, not about race as a concept.
"Noticing race" is not racist, but denying students the opportunity to attend the school of their choosing because of the color of their skin is.
It is discrimination precisely as you defined it-- "Treatment or consideration based on class or category rather than individual merit; partiality or prejudice." In this definition, treatment is referring to treatment of a person. Likewise, "individual merit" refers to the merit of said person, not to the merit of plans to diversify schools.
"Individual merit" refers to the merit of said person absolutely, but in what context? I am a very meritorious debater, but that helps me not a whit in an application to be a Physics Professor. Merit is not a stable subject; it is contingent on particular contexts and situations. Throwing large balls into hoops is an important factor in merit in some situations, not important at all in others. Often times, simply being able to fill a role is what counts as merit--a mediocre saxophone player can and should get a spot in the band over a great trumpter if the band has too few saxs and too many trumpets. Merit is thus defined as the ability to do or fill a socially important or necessary role.
Since nobody seriously disputes that diversity is a compelling interest (a socially important or necessary thing), in the case of elementary education, one aspect of merit is being able to create a diverse student body. Schools don't choose the "best" students to reward them, they choose the students who would make for the best school, a much broader metric and one in which diversity is clearly a part. Not only is this intuitive, it is difficult for me to comprehend many other metrics for measuring merit amongst kindergarteners. This isn't a magnet school, so we don't test them on academic skill (and I think the idea of testing 5 year olds to be somewhat ludicrious anyway). How many other factors could show a 5 year old "deserves" to go to school A? Indeed, compared to (say) random assignment, assignment based on diversification is far more meritorious, because it actually bears a relationship to a compelling state interest, while keeping random number generators in tune doesn't.
Because merit is a concept contingent on the particular goal being sought, and because merit on the racial diversity axis is obviously race-linked, color-consciousness student assignments are perfectly consistent with the merit principle.
Bring it closer to home.
Your application to Carleton, instead of being approved, was denied because of Carleton's "racial imbalance." You were diverted to Texas Southern University, Houston, because it also has a racial imbalance. The commute cost is on you.
Merit has nothing to do with it, race everything.
Now, argue why that is fair.
While you are at it, you might contemplate what freedoms you are willing to give up for your beliefs.
Well, Texas Southern isn't that much further away from my house (in Maryland) than Carleton is, so the commute issue isn't really a factor. Also, as many people have noted in the context of college Affirmative Action, the split isn't really between going to TSU instead of Carleton, but going to Macalaster instead of Carleton, or Penn instead of Yale, or what not. So that's not really apposite either. Next, its impossible for race to be the only factor being used, because Carleton is still admitting other White folks (that's why there is an imbalance) and they have to have some reasoning for preferring those White folks over me. Finally, elementary school attendance is not considered to be judgmental (you're not considered to be a "better" or "worse" student just because you attend East Elementary School versus Central Elementary School), so that is another distinction that cuts against your scenario.
But taking your example in the most charitable manner--I don't get to go to Carleton because of diversity issues. Would I be thrilled? Probably not--but again, its not like my life ends because I'm attending Wesleyan or Pomona, and I'm not sure I'd be any more pissed than if I didn't get in because they already had too many debaters and were looking for more literature-focused students. Either way, I'm not going. Also, I'd note that in that latter scenario "rejecting the debater" wouldn't be seen as saying that debate isn't important, just that having a college of 1,900 debaters and one physics student is not likely to yield a positive educational experience, so there is no imputation of inferiority based on the decision. Anybody who doesn't get into any college for any reason isn't going to like it--there is very little uniqueness here.
More importantly though, I don't have any enforcable claim on Carleton to admit me. They aren't obligated to let me in. They have no duty to let me in. Carleton's obligations aren't to its applicants, they are to its attendees, and admission decisions ought to be made accordingly. Again, admission to college is not a reward for good performance. Were that the case, we'd simply rank every HS grad from 1 to 100,000 (or whatever the total is) and let them select their own colleges in order of rank until all the spots are filled. Admission to college is done based on the judgment of the university as to whether or not the student will improve the university experience for all the other students as a whole--a polycentric problem (to borrow from Lon Fuller) if there ever was one, and one that is contingent on a huge variety of factors: interests, experiences, academic prowess, hobbies, personality, etc..
So, Carleton's decision not to admit me because of diversity issues would be fair because a) I don't have any legitimate claim against them as to my admittance, which gives them substantial leeway in determining who to admit, b) their decision substantially relates to issues of educational quality that is and ought be their primary focus, and c) their decision imputes no racial superiority or inferiority to me in the specific sense, while actively combatting those sentiments in the general sense.
Maryland, uh? So you self-selected into a expensive private school instead of attending Coppin State or Bowie State or UM?
Why?
If all schools are the same, why did you choose to leave Maryland? What would happen to the the chances be of you becoming a law professor if you had gone to Coppin State instead of Carleton?
Why assert that the issue isn't between TSU and Carleton but between Carleton and other schools of equal quality? Because you have freedom of contract to opt out of public univerities? In my scenario I was trying to imply that the choice was taken away from you - that it was TSU or nowhere. Or, even worse, that if you failed to attend TSU then the law could be used to punish you for not attending (as in compulsory education).
Next, its impossible for race to be the only factor being used, because Carleton is still admitting other White folks (that's why there is an imbalance) and they have to have some reasoning for preferring those White folks over me. Really? What if it's just luck of the draw... you happen to be the x+1 body that would screw up the balance. Your personal merits don't matter, only raw numbers count.
And if not you, then who? People who can't debate? - should we toss them over the side first? People who can't sing? Take your pick.
Finally, elementary school attendance is not considered to be judgmental (you're not considered to be a "better" or "worse" student just because you attend East Elementary School versus Central Elementary School)... Really, you ought to see the ruckus to get kids into the "right" track magnet public schools here so that they can track into the right middle school and the right high school. Wait'll you have kids and see how the real world works. Of course, where I grew up, you could select the "right" schools by moving into the "right" neighborhood and attending the local schools. Now, I have been at the bus stop at 6am in the cold to see a child off on the bus for the 45 minute ride to school across town to a "preferred" magnet school when there is a school he could have attended 3 houses down but for the systems we have created to give the illusion of equality.
Some parents, tired of dealing with the school system being used for "social engineering" - fight to get their kids into the "best" private schools. You may have noticed that Chelsea Clinton did not attend DC public schools.
Yes, the petitioners have the right to opt out of the public school system, too, and send their kids off to private schools. Of course, they have to be able to afford it. Sort of like choosing a private college over a public university... Some people have more options than others...
Again, admission to college is not a reward for good performance. You have to be kidding if you believe that. I doubt that Princeton or Carelton or the University of Maryland add to their "diversity" by accepting students who have really poor grades, low test scores and no activities outside of hanging around pool rooms. Performance matters.
I do not have the Seattle program backwards. The case before the court involves a few students, but they are a very small sampling of the total number of students that were affected by this program while it was in place.
The majority of the students turned away from their schools of choice were white and asian students. As for whether the schools were majority white, the majority of schools in the district are majority white, since the makeup of the district is 60 percent white and 40 percent minorities.
The "racial tiebreaker" was not evenly applied througout the district though. It was only applied to a few of the schools in the district that were "oversubscribed". The other schools in the district have a racial mix that does not reflect the district's overall racial mix, but the goal of "diversity" wasn't important enough to use quotas in those schools.
For what it's worth, Seattle is considering ending the "open choice" program anyway, because the transportation costs are getting out of hand. That would make the Seattle case moot.
The racial tiebreaker hasn't been used in years since it was first overturned in the courts. The potential that it could return is one of the reasons that this case has remained in the courts.
As for my choice to use the second definition of racism, this case isn't about the superiority of any race. It is entirely about using race as a discriminating factor in choosing who may go to which school. Racial superiority isn't even an issue that came before the court.
That's why I chose not to use the first definition. The facts of the case do not fit the first definition, they do fit the second definition.
Just because the second definition is second in the listing does not make it invalid.
You cannot end racial discrimination by continuing to practice it.
I think you're ducking out of a significant portion of the analysis that I proffer, and offer a few non-sequitors of your own (like the idea that only rich kids can attend Carleton--given that the vast majority of our students are on need-based financial aid and Carleton meets 100% of demonstrated financial need, that just isn't true).
I'm not sure what the gap is between the best and worst schools in the Seattle and Louisville systems. I'd hope it isn't at the level of Carleton versus TSU. Regardless, it's very important to make every school a quality school--unlike in college, public schools in one system shouldn't have an academic hierarchy (that's not the reality of course, but it is the goal). However, that all remains true regardless of whether diversity is a factor or not--again, there is no uniqueness to your argument vis-a-vis race neutral school assignment policies. To use your "no choice" argument, I would be really pissed if I wanted to go to Carleton, and Carleton wanted me to go, and instead I had to attend the closest school to my house (Montgomery Community College) because college assignment is based on geography. If the choice truly is "or nowhere", I'd be as annoyed if I was forced to go to TSU (or again to more accurately be in line with the case here, my "fifth choice school") because of diversity as if I was forced to go to MC because of geography. But at least the former bears a substantial relationship to a bona fide educational objective, so I fail to see how it magically becomes less defensable.
What if it's just luck of the draw... you happen to be the x+1 body that would screw up the balance. Your personal merits don't matter, only raw numbers count.
And if not you, then who? People who can't debate? - should we toss them over the side first? People who can't sing? Take your pick.
In the college scenario this makes no sense, as colleges don't select their students randomly and I'm not sure how in an applicant pool any particular person has to be the "x + 1" (obviously some person has to, but the college is free to choose any one, and choosing who is x + 1 can come down to loads of factors regarding extra-curriculars, grades, etc). So sure, if everything else is equal and we need to drop one kid and M is a great singer and N isn't, that could be a reason for decision. Why not?
In an elementary school setting, I'm still not sure how being applicant x + 1 is better when you're randomly not selected versus not selected for a bona fide educational reason. Remember, in either case, some people aren't going to get into schools that they want to go to. The only difference is that under the Louisville & Seattle plans, its for a bona fide educational reason, while in your scenario its because they live on the wrong side of the tracks or came up on the wrong side of a random number generator. Since you still haven't told me (and I think it's a bit ludicrious to argue) what constitutes a "meritorious six year old" who could claim to be deprived of his #1 school disregarding merit, I feel like I'm comfortably ahead here.
Really, you ought to see the ruckus to get kids into the "right" track magnet public schools here so that they can track into the right middle school and the right high school. Wait'll you have kids and see how the real world works. Of course, where I grew up, you could select the "right" schools by moving into the "right" neighborhood and attending the local schools....
Maybe I'm an isolated case because I went to a non-magnet public high school (indeed, turned down the opportunity to go to magnet school) and still turned out alright, but I don't think you're addressing the argument I actually made in that section: that there is no imputation of inferiority when someone does not get into a non-selective non-magnet school that does not and does not purport to admit students based on academic qualifications (i.e., the vast majority of public schools).
And finally, as to the issue of "perfomance", of course it matters, but you don't respond to any of my analysis about the contingency of merit or its polycentrism which shows how merit (performance/merit in what? Physics? Band? Debate? Community Service? SAT Scores?) is an instable concept that is variant based on the college's desires and the state of all the other applicants. Colleges of course want academically advanced students. They also want students with drive and ambition. They also want a good mix of band players and jocks and debaters and computer geeks and poets. They also want students from a variety of social backgrounds. All of these form an interconnected web by which colleges make their decisions. But since none of these are commesurate (how many community service projects does it take to become better than one year on the all-state band? How many SAT points is one debate trophy worth?), weighing them out is a subjective endeavor in any case. Because their is no objective way of ordering these preferences (both because of their incommesurability and because of their polycentricity), it is hard to conclude that any one student has an enforcable claim toward admittance vis-a-vis the applicant pool as a whole.
Perri: You said that White students are prevented from attending schools in majority-black neighborhoods (and thus I presumed schools that had a majority Black enrollment). But under the tiebreak which tries to make schools match the 60/40 split as best as possible, this makes no sense. If Seattle is 60% White, and a school is not majority White (say 20% White), and a White student wanted to attend, he'd be moving the school closer to being representative. So he'd get in. It's only in the opposite case, where the school is majority White (60% or more), that a White student who wanted to attend couldn't (because then he'd be moving the school further away from being representative).
As to the definition of racism, I pointed out that at worst this case implicates both definitions and creates a clash between fighting the first def (systems of racial superiority) and the second (non-discrimination), and I argued that in such as scenario we should default to fighting the first because its a larger problem. As the Amici briefs showed, diverse schooling is essential toward breaking down these race-superiority mindsets. So to simply fiat the first definition out of the case is not a legitimate move, as it is a crucial grounding for Seattle and Louisville's position.
But I also explained why even under the second def, this isn't racism, because the decision is being made on a merit-axis, and because applying the definition as you construe would make the concept of racism internally incoherent.
I am not convinced that racial diversity, in and of itself, is a bona fide education goal. It seems to me that the goal of an educational institution should be to cultivate learning, inspire creativity, develop critical thinking, and enable each student to reach their potential.
An educational environment is not enhanced by having a certain ratio of black/white students, but instead by having a community of learners who think deeply and question unceasingly because they love to learn. I could care less whether the students are black, white, brown, yellow, or purple.
A student does not fulfill his/her "socially important or necessary role" by being of a certain race. Their socially important and necessary role in school should be to enhance the educational environment by their unique talents, abilities, personalities, and upstanding characters.
It seems to me that the goal of an educational institution should be to cultivate learning, inspire creativity, develop critical thinking, and enable each student to reach their potential.
The amici briefs I cited shows that a diverse learning environment is crucial to many of these goals.
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