T Nation

Community vs. Seattle Schools

There’s a lot of talk in the media about this case and what it does with regard to race-based remediation. However, I think most of the puffery (see here for massive puffery and lack of understanding, per usual

http://www.nytimes.com/2007/06/29/opinion/29fri1.html?ex=1340769600&en=91616c4ed8f557ad&ei=5124&partner=permalink&exprod=permalink ) in the stories is overblown.

The case can be found here: http://scotusblog.files.wordpress.com/2007/06/05-908.pdf

Assume for a moment that the plurality opinion is not the controlling opinion – this is the case, in fact, because it was limited by Justice Kennedy’s concurrence.

In essence, the Chief Justice’s plurality opinion controls as for the earlier parts, with Kennedy not agreeing with the parts of the CJ’s opinion that state that race can never be a compelling interest.

So, setting aside for a moment that we are having our Constitution controlled by the preferences of one unelected judge (see this set of posts on Justice Kennedy’s record in 5-4 USSC decisions this term:

http://www.volokh.com/posts/chain_1182275173.shtml ), what did Justice Kennedy’s opinion do?

It definitely pulled back from previous cases allowing busing and using race as THE factor in enrollment policies, such as Swann.

However, even with the rhetorical flourishes in both the plurality opinion written by Justice Roberts (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”) and Kennedy’s concurrence, the effect of Kennedy’s concurrence is to continue to allow race to be used as a factor in making enrollment decisions – particularly in cases in which there was actually past legally sanctioned discrimination for which government is attempting to provide remediation.

It leaves us with formerly collegiate standard of Grutter applied to elementary, junior high and high schools. Race-conscious policies using non-racial means are favored over any race-specific means and must be attempted first; race-based assignment policies that target individual students (as opposed to structural reforms like school-location policies) are permitted only if they make individualized determinations and use race as only one factor of many – a “point system” idea.

See this blog generally for some good discussion by some folks who had submitted amicus briefs in the case (just scroll down):

Eh, the title of the post was the name of the case: Parents Involved in Community Schools v. Seattle School Dist. No. 1

I suppose that was too long – probably should have entitled it “The School Busing Case” instead anyway, to get more clicks…

It is an obvious case of discrimination by the government based upon race which I and any other non-racist American should find despicable.

You cannot fix discrimination by using more discrimination, all the civil rights activists need to figure that out…

It boggles my mind that people can on the one hand despise segregation based on race only to support further discriminatory actions by the government based on…race.