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Tuesday, April 22, 2014

JK, Seattle

Some selected passages from Parents Involved v. Seattle School District No. 1:
The present cases are before us, however, because the Seattle school district was never segregated by law. . . . The justification for race-conscious remedies in McDaniel[v. Baressi, 402 U.S. 39 (1971)] is therefore not applicable here. The dissent's persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, "devised to overcome a history of segregated public schools," post, at 2825-2826—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.
127 S. Ct. 2733, 2761 (2007) (plurality).
Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle's plan.

Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle's race-based student assignment efforts, post, at 2839-2841, it cites no law or official policy that required separation of the races in Seattle's schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle's schools were once segregated by law. See post, at 2803-2805, 2812. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary.
127 S. Ct. 2738, 2771 & n.7 (2007) (Thomas, J., concurring).

As it happens, the history of Seattle schools vis-a-vis segregation also made an appearance in today's Schuette opinion:
Although there hadbeen no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that“permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) (BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically,the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812.
If I were Justice Breyer I'd be inclined to lob a molotov cocktail through the window, but sure, concur in the judgment instead. At least Justice Sotomayor identifies the contradiction in footnote 9 of her dissent (and Justice Scalia does so as well in footnote 2 of his concurrence).

As for me, it's amazing how the much more trusting we are of democratic decision-making on racial issues when the ultimate decision seems to favor White people. The contrast between Schuette, on the one hand, and Parents Involved and Shelby County is so stark as to be blinding. The people, through the democratic process, decide that racism is no longer a serious problem? Democracy in action. The people, through the democratic process, declare the opposite? That's what we have courts for -- to shield powerless majorities from such intolerable insults upon their character. Once again, we can credit Scalia for his honesty -- he puts Carolene Products squarely in his cross-hairs -- possibly the first truly negative citation that venerable footnote has seen since its 1938 inception.

2 comments:

  1. The people, through the democratic process, decide that racism is no longer a serious problem? Democracy in action. The people, through the democratic process, declare the opposite? That's what we have courts for -- to shield powerless majorities from such intolerable insults upon their character.

    Eh. The SCt has been willing to intervene to strike down democratically-enacted racism.

    Recall Reitman v. Mulkey? The California legislature adopts fair housing laws proscribing racial discrimination. In 1964 a citizens’ initiative amends that state constitution to overrule the fair housing laws. The California Supreme Court holds that, while the state had no duty to adopt fair housing laws, repealing them in this manner would constitute state action promoting discrimination – in violation of the 14th Amendment’s Equal Protection. The SCt affirms.

    Recall Washington v. Seattle School District No. 1? School dist. adopts bussing policy to reduce racial segregation. In 1978 citizens pass a state-wide initiative granting kids a right to attend either the public school that is closest or second-closest, but permitting school boards to vary this requirement for pretty much any reason other than racial desegregation. The SCt finds that the initiative violated the Equal Protection Clause by inappropriately segregating considerations of race from all other considerations. And the Court noted that the initiative did not merely repeal the bussing policy, but inappropriately lodged decisionmaking authority over the question at a new and remote level of government.

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  2. Aside from these cases being over 35 years old, they're also on the verge of being overturned. Kennedy's plurality narrowed the scope of the Seattle line into near-oblivion (and had to disown his own argument in Parents Involved to do it), and the Scalia concurrence would have reversed them outright.

    Over the past 20 years, the Court has displayed a marked skepticism towards state laws designed to counteract racism, while being very hands-off towards those which forward or are inspired by it.

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