Tuesday, May 05, 2009

In This Together - Washington

Every so often, one has a big idea. And it is in precisely those moments that I'm thankful to have a defunct blog where I can put the idea "out there" for ever-so-gradual input and building/abandoning (as appropriate).

The Basic Idea

In short, promoting public service. What I envision is a state-led campaign encouraging people to give half an hour in community service for every hour of tv they watch. It sets a high aspiration point. The campaign reminds people of the value of community service to self and to others, including testimonials and examples of the achievements that are possible when we come together for the common good.

The Practical Side

Beyond the call to service, we incentivize it. We set a tangible number, say an average of 30 hours per month. Anyone meeting that goal receives some sort of card or certificate acknowledging him or her as a "Daughter of Washington" or "Son of Washington" or "Exemplar of Washington."

But this certificate isn't just a piece of paper! No, this is where it gets good. We enlist businesses to offer meaningful rewards, say 25% off, to persons presenting the certificate. We're ALL in this together, persons and corporations alike. In exchange for participation, businesses receive (in addition to the recognition of participation is the program) some sort of tax break or other benefit from the state.

A Little Nitty Gritty

So where do these community service hours come from? Obviously there are numerous opportunities with private organizations, charities, church groups (engaged in non-evangelical activities), etc. that the state should accept as counting toward the hours. Additionally, the state could organize opportunities, such as regular park cleanings, knitting events where people make clothing for indigent families, opportunities for professionals (doctors, lawyers, etc.) to work on behalf of the indigent, and so on. Many of these programs already exist. But what doesn't exist is a central location for disseminating that information. A website, for example, where the teenager can log on, find a community service project going on that say, and drop by and grab a shovel. It's a rather fundamental precept that when something is made convenient, more people will take advantage of it. So why on Earth wouldn't we make public service more convenient?

Nor do I imagine this requiring any sort of bloated bureaucracy. Clearly, staff would be needed to run the website, compile information from private service organizations, oversee the state-led projects, and control the distribution of certificates. But the value provided by thousands of volunteer hours more than pays for this modest sum.

So What Do You Think

If such a program existed (in your state - it's clearly transplantable), would you participate? What parts make sense? What parts make no sense? How might you improve on this proposed program? I'm confident there are many ways to make the idea stronger - I literally cooked it up on a bus ride home from the gym. So please, share your thoughts!

Saturday, March 08, 2008

I Miss the Constitution (Or "Hey, I Was Using That!")

The United States wishes to enter into a "bilateral agreement" with Iraq concerning security assurances and American troop presence. Traditionally, a bilateral agreement between two sovereign nations is called a "treaty." According to the U.S. Constitution, in order for the United States to enter a treaty, the president must sign it and two-thirds of the Senate must ratify it. This is part of something that used be known as "checks and balances."1 Thus, one might be forgiven for presuming that in order for a treaty with Iraq to go into effect, it would require ratification by two-thirds of the Senate. But, according to the Bush Administration, you'd be wrong!

And what, you must be dying to know, is the justification this separation-of-powers-destroying argument? 9/11. Well, indirectly anyhow. More directly, it's the Authorization for Use of Military Force Against Iraq (AUMF). You may remember its passage as the moment Congress abdicated its Constitutional responsibilities related to the declaration of war. That was bad enough. But now the Administration is arguing that the Legislative Branch ceded not only the power to declare war (Art. I, s. 8, cl. 11) but also its Advice and Consent power.

Here's how the argument goes - In the AUMF, Congress provided:

"(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq."

Maintaining troops in Iraq is an essential component of maintain a stable Iraq and a stable Iraq is necessary to eliminate any threat from Iraq, which in turn is necessary to defend the national security of the United States. Therefore the AUMF authorizes the President used the Armed Forces in this way, which necessarily allows him to take steps (i.e. negotiate agreements) to do so.

That argument, of course, is bunk. On many levels, but one in particular. You see, no plausible reading of the text allows for this. The only power granted to the president is to "use the Armed Forces of the United States," which is well-short of any sort of express waiver of the "Advice and Consent" requirement (if, indeed, such a provision might be waived - that's an argument for another day). The logic of this argument would also support the conclusion that Congress doesn't actually need to approve funds for the military because that's a necessary component of complying with the AUMF. In other words, this logic is one of an unconstrained Executive Branch.

At the end of the day, the Administration's view is a misreading of the AUMF. But far worse is the fact that Congress passed a document that even arguably allows for such a reading. (As a reminder, here's the Senate roll call vote and the House roll call vote.)

1 This was before it was was reinterpreted to mean that Congress writes "checks" to pay for the President's foreign expeditions, regardless of any negative "balances" in the country's pocketbook.

Sunday, February 17, 2008

Disaster! (or "On the Seating of the FL and MI Delegations")

Recently the Hillary Clinton campaign has been advocating the seating the delegations from Florida and Michigan. Such a move would be illogical, unjust, and could quite possibly result in an outright theft of the Democratic nomination. Calls to seat the delegations are merely examples of the anything-to-win political gamesmanship that has poisoned our system for so long.

To begin with, I am not addressing the wisdom of the DNC in stripping those states of their delegations in the first place. There is an important debate to be had about the propriety of that decision, but it is irrelevant on whether or not to seat the delegations from Florida and Michigan. That decision is a sunk cost; it has been made and its consequences have occurred.

First, I should make clear that I view the purpose of a primary election or caucus as a means of determining the will of the voters in a given state. The will of the voters is then converted into delegations to be sent to the party's convention. The transitive property does not apply here; you simply cannot remove the will of the voters from the equation. If will of the voters cannot be discerned, the delegations are worthless and should be excluded. And that is why the Florida and Michigan delegations must not be seated. Let's examine them one at a time.


We cannot know the will of the voters in Florida. For weeks in advance of the primary, voters there were told by the media that their votes wouldn't count. We cannot know how many chose not to vote as a result of that nor can we know what proportion of supporters for each candidate decided not to vote. If we can assume Clinton supporters and Obama supporters avoided the polls in equal proportions, that would be one thing. But until someone affirmatively demonstrates that to be the cause, it is a risk we musn't take.

Given these uncertainties, the least-bad option is to do with the results precisely what Florida voters were told would be done with them: disregard them. To do otherwise risks disenfranchising the voters of Florida. (For those from Washington State, imagine that in this beauty-pageant of a primary we're having, Hillary Clinton crushes Obama and the state party then decides to base half its delegates on that result. You chose not to vote because you were told over and over again that it was meaningless. That is the danger in Florida.)


In the case of Michigan, you have all the problems of Florida. But Michigan is worse. Its results have all the legitimacy of a Saddam Hussein election. You see, just as in Iraq under Saddam Hussein, there was only one candidate on the ballot. Despite this, 40% of voters cast their ballots for what effectively amounted to "Not-Hillary-Clinton." In addition to knowing how many scores chose not to vote, we have no way of knowing how many of those "Not-Hillary-Clinton" votes were for Obama, Edwards, or Biden. Simply put, we have NO WAY of knowing how to apportion the Michigan delegation. No informed neutral observer could possibly argue this delegation should be seated; to even suggest as much is a staggering display of either ignorance or, worse, win-at-any-cost politics.

(For those interested in other aspects of the nominating process, I recommend the excellent treatment of the subject over at Pro Bono Geek.)

Sunday, January 27, 2008

"Vie one with another in good works." (5:48)

Hello friends,

This is kinda serious, so don't bother if you don't want to. :)

I just read a short letter signed by over 100 Muslim scholars, theologians, clerics, and leaders from throughout the world. It was put together by a Muslim institute in Jordan near the end of last year.

On the surface, it's yet another "call for unity" between people of different religious/political/social/etc. persuasions for the sake of not blowing each other (and everyone else) up. These seem to be a dime-a-dozen these days. Not to say that they're not important, and not to recuse myself from having made many of them, but for the large part they've lacked a rigor to which to bind any consequent commitment.

The problem seems always to be that wherever there are similarities, there are differences, too. And certain types of difference (religious, especially) carry with them entire identities and convictions and certainties that can’t lightly be primed over like an old coat of paint – they always show through, enough to distract at best, and to undermine at worst. Who’s work is it to examine the structure and stuff of our differences and find those shared spaces where we can engage each other?

Everyone’s, of course. But scholars can often initiate these conversations that, at first, stay amongst themselves, but hopefully over time, become the talk of the rest of us.

The Common Word statement is the result of a Muslim search of shared ground between Christians and Muslims. And as a Christian, I was deeply moved and satisfied. Many of my skepticisms were directly addressed. (Notably, about Jesus’ saying, “He who is not with me is against me.”)

One question: will this satisfy Christians (and Muslims) who believe that the end goal of their religions is the total submission and dominion over the entire world of their way of thinking, seeing, and believing? If you're Billy Christian from Colorado Springs, does it make sense to pause to find a common word with Muslims when their salvation is at stake? I wonder. I also don't think it matters (more on that below), but I still wonder.

I wonder what more conservative Christians will think. I wonder what agnostic or atheist friends will think. I wonder what my Muslim friends think. And I also wonder how these conversations can start to spread among people everywhere – after all, a “common word” needs “common people”.

The basis of the letter is a section of the Qur’an quoted by the authors, where God commands Muslims to reach out to Jews and Christians:

Say: O People of the Scripture! Come to a common word between us and you: that we shall worship none but God, and that we shall ascribe no partner unto Him, and that none of us shall take others for lords beside God. And if they turn away, then say: Bear witness that we are they who have surrendered (unto Him). (Aal ‘Imran 3:64)

You might ask, “Wait – isn’t this just telling Muslims to convert everyone to Islam? Isn’t this just telling Muslims that until everyone is alike, they must not rest?”

The letter addresses this. The authors refer to God’s recognition that the “People of the Scripture” (a Muslim name for all Jews, Christians, and Muslims) are not alike. In the Qur’an, God points out that there are difference not only between the People of the Book, but also within each religion as well.

They are not all alike. Of the People of the Scripture there is a staunch community who recite the revelations of God in the night season, falling prostrate (before Him). They believe in God and the Last Day, and enjoin right conduct and forbid indecency, and vie one with another in good works. These are of the righteous. And whatever good they do, nothing will be rejected of them. God is Aware of those who ward off (evil). (Aal-‘Imran, 3:113-115)

For me, the key is the implicit command in this section for all people of faith to “vie one with another in good works.” What a transformation that would be, and why not?

Finding a common word isn’t some fanciful utopian notion where a sea change is the prerequisite. A common word is the prerequisite for a sea change. We, each one of us, can decide that our actions and motivations be oriented towards the contest of good works that God is inviting us to join. It doesn't matter if Billy Christian from Colorado Springs is convinced or not - what about you? What about me? Can a common word be true, just for us? Because I think that it would be enough. Isn’t it invigorating to think about what our “staunch community” could accomplish, trying to outdo each other in reconciliation, compassion, mercy, and humility? And why wouldn't Billy Christian, in a moment when all else seems broken or beat, receive the same love? Why shouldn't he be converted to us?

What other staunch communities are possible? How about a staunch community of feminists and traditionalists, united to improve education and services for children? How about a staunch community of scientists and spiritualists, united to explore and conserve the world we live in? How about a staunch community of LGBT folks and their opponents, united to strengthen the place of love and family in fractured times? How about a staunch community of Democrats and Republicans, who instead of vying for power and influence, vie in good works, as the Qur'an suggests?

Why not then:
...they shall beat their swords into ploughshares,
and their spears into pruning-hooks;
nation shall not lift up sword against nation,
neither shall they learn war any more.
(Micah 4:3)

Here I go again – dime-a-dozen calls for unity. But the Common Word letter lays out a model for how these kinds of calls can go beyond the polite greetings that they often are: assemble people of conviction and integrity, identify what is essential, let go of what is not, expand the shared spaces, and spread the good news.

Please tell others.
And by the way - I am doing fine.


Thursday, August 09, 2007

LOGO Debate

The LOGO Network tonight hosted a debate with all the Democratic candidates. (They had invited all the Republican candidates for a second debate but all declined.) As I tuned in too late to catch Obama or Edwards, my commentary will be brief, but I have two points:

1.) The format of the debate was very well done. In turns, each candidate came out and sat down - just the one candidate, panelists, and a moderator. The panel asked questions of the candidates, but because of the more intimate setting, any attempt to dodge was utterly transparent (I'm looking at you, Bill Richardson). The questions focused on issues important to the LGBT community (marriage equality, disease prevention, civil rights, etc.) that are often unexplored in the more "mainstream" debates. I would love to see more debates like this.

2.) As for the candidates, Mike Gravel is a little blurry-eyed (in 5 years marriage equality won't be an issue? Wishful thinking, methinks, though I would love nothing more than to be wrong), Bill Richardson looks like he's running for high school ASB President (the man has tremendous qualifications but lousy, lousy, lousy public speaking skills - he couldn't even answer a direct yes or no question), and much as I despise Hillary's triangulation, I will be 100% behind her should she get the nomination (she is articulate and, contrary to the Limbaugh-created image, rather affable). Dennis Kucinich is, well, he's Dennis Kucinich - he didn't say a single thing I disagreed with, but he's not a persuasive speaker; his rationales and justifications (which I agreed with, generally) were not stated in such a way that anyone who had previously disagreed with him would change their mind.

Thursday, July 26, 2007

Referendum 67

What is a Referendum?

In the State of Washington, the citizens may put on the ballot measures passed by the Legislature provided they collect 112,440 registered voters. In this way, it is a direct check by the citizens on their elected officials.


At the outset, I wish to provide you with three links:

  • The text of Referendum 67 (.pdf file)
  • Approve Referendum 67 website
  • Reject Referendum 67 website

    My analysis draws primarily from the first link, but I have consulted both of the others as well.

    This will shortly become a bruising fight as millions of dollars have been already poured in. You will undoubtedly hear commercials on the radio, see commercials on tv, and hear countless individuals opine on the subject. And so I thought it would be productive to look into what the law would accomplish, if passed. I should make clear, I am not yet an official law-talking guy, but I am certainly a "law-reading guy" and have a sense of what the words mean and what to expect.

    Referendum 67 would, at the end of the day, do one thing: it would prohibit insurers from "unreasonably" denying claims. The devil, as they say, is in the details.1 The first detail, and this is a very large one, is that the law does NOT apply to health insurance. That particular disaster is left for another day. Instead, think insurance for automobiles, homeowners, and so on. The next detail, and the true source of disagreement between the "Approve" and "Reject" camps,2 is the method for prohibiting unreasonable denials.

    Referendum 67 would allow, but not require, an award of triple the amount of actual damages where the court determines that the insurer acted unreasonably. Worth noting is that for even the possibility of triple damages to apply, the denial must not only be wrongful, but also unreasonable. Thus, even where a denial was wrongful and in violation of the policy, the insurance company would face the prospect of triple damages. Prior to filing the lawsuit, the insured must provide the insurer with 20 days written notice of the basis for the lawsuit, thereby providing the insured with an opportunity to correct an unreasonable denial. If the denial was merely wrongful, but not unreasonable, the insured would still be entitled to sue for actual damages, attorneys' fees, and litigation costs.

    The astute reader may be wondering how this relates to punitive damages. In the State of Washington, punitive damages are prohibited unless specifically allowed by statute. In a very real sense, then, Referendum 67 allows for a limited amount of punitive damages in limited situations.

    And so, at last, we reach the least important part of this post - my thoughts on the advisability of Referendum 67. First, having reviewed the websites, I assure you that the dire warnings from those opposed are overstated. IF insurance rates go up, it will be because insurers are unreasonably denying claims. And if that is the case, insurance rates SHOULD go up. Imagine - would you like to save $10 on your monthly auto insurance, but increase the likelihood they would unreasonably deny your legitimate $15,000 claim? The concern about increased litigiousness is also overstated. Going to court is an expensive business. These cases will often be on a contingency basis and no lawyer is going to take the expenses of frivolous cases. Indeed, even if a lawyer did so, where the case is truly frivolous, the court can impose sanctions and order the lawyer to pay the insurance company's legal fees.

    No, the major impact, I suspect, will be that the same people will take their insurance companies to court over wrongful denials, but instead of asking to merely be made whole, they will ask for an additional amount. The courts will be reticent to award that additional amount (frustratingly so, I suspect), but in certain cases the denial will be so egregiously unreasonable that the court will award additional damages. Insurances companies, presuming they are rational actors, will seek to avoid that expense by altering their claims process to ensure that it is reasonable. Again, I emphasize that Referendum 67 requires not that the systems are perfect, merely that they are reasonable. For those who are concerned about individuals getting excessive amounts of money to which they are not entitled, there are other solutions available (e.g. substantial taxes levied against the amount awarded in excess of actual damages), but that is a post for another day.

    In sum, I offer Referendum 67 my qualified approval - it is no panacea, but it creates an incentive for insurers to act reasonably.

    1 Or, if the Internet is to be believed, the smoke on 9/11.
    2 Reject camp, as it happens, does not sound like a particularly appealing summer activity.
  • Saturday, June 30, 2007

    PICS v. SSD - Outlines

    [NOTE: I have decided to post this piecemeal. The Roberts, Thomas, Kennedy, and Stevens outlines are posted. I'm starting to read the Breyer novel opinion.]

    Below are outlines (literal, not law school) of the arguments made by the various opinions. I have endeavored to be as neutral and fair as possible in my presentation of the arguments, as that is the only way to later have a meaningful discussion. These outlines are, admittedly, quite lengthy, but so were the opinions - hence the necessity.

    Schools' Plans


    Incoming 9th graders rank preferences of high schools. Students are assigned based on first preference. If (and only if) a school is oversubscribed, the school uses the following assignment method (in this order):
    1. Assign to the school attended by an older sibling
    2. If, and only if, the school is not within 15% of the district's demographics, look to student's race (white or nonwhite) to ensure school is within 15% of district demographics. (There is a discrepancy between opinions as to 10% or 15% - it began as 10% and was changed to 15% prior to this challenge)
    3. Assign based on geographic proximity
    4. After the freshman year, students were free to transfer schools.
    Jefferson County

    All non-magnet schools must be 15-50% African-American. Incoming kindergarteners assigned a school based on address. Students may request a 1st and 2nd choice. Decision based on space and whether is would violate the racial percentages above. Students may later request a transfer, subject to the same restrictions.

    Roberts Opinion
    (Majority opinion for I, II, IIIA, and IIIC; plurality opinion for IIIB and IV)


    Plaintiffs have standing. The injury is "being forced to compete in a race-based system that may prejudice the plaintiff." The parents have younger children that may be forced to do so because there is nothing stopping the districts from re-instituting the plans.

    III A

    When the government burdens or benefits individuals on the basis of racial characteristics, the court uses strict scrutiny. To satisfy that, the government must show (1) the plan is narrowly tailored (2) to meet a compelling government interest.

    There are two possible compelling government interests in situations like this: (1) "remedying the effects of past intentional discrimination" and (2) interest in diversity in higher education. Neither is applicable.
    • In Seattle, no past intentional discrimination
    • In Jefferson County, the district court declared it remedied in 2000
    • Diversity is more than just race; here where race enters it is decisive
    • Grutter focused on conditions unique to higher education, namely the expansive freedom of speech and thought
    III B

    The additional asserted interest are the educational and broader socialization benefits from a racially diverse learning environment. These benefits are irrelevant, however, because the plans are not narrowly tailored to them.

    The plans are directed to racial balance, which is impermissible. The plans are tied to demographics, not the level of diversity necessary to achieve the benefits, as required to be narrowly tailored. No argument that the level necessary coincides with demographics.
    • Example: In Seattle, 50% white and 50% Asian would meet diversity requirement while 30% Asian, 25% African American, 25% Latino, and 20% white would not.
    Unlike Grutter, this is limited to a defined range.

    Racial balancing cannot be a compelling government interest. Government must treat citizens as individuals. Otherwise, race would always be relevant.

    Remedying past societal discrimination doesn't justify race-conscious government action.

    Proportionality is not required for integration.

    The goal of diversity to see students as individuals is at cross purposes with with people solely as members of a racial group.

    III C

    The chosen means are unnecessary. Their minimal effect shows other means would be more effective. In Seattle, only 52 students were assigned to non-preferred schools due to race that would not have otherwise been assigned there. Thus, benefit doesn't outweigh harm of disparate treatment.

    Districts failed to consider other race-neutral methods.


    Dissent relies on compelling interest of remedying past intentional discrimination, but ignores the legal difference between de jure and de facto segregation crucial to law. Thus, its citation to various cases is inappropriate.

    Dissent also relies on cases decided before strict scrutiny was applied to all racial classifications. Other cases relied upon by dissent reserved question of non-de jure segregation.

    Dissent's reliance on Grutter is misplaced because there the determination was individualized.

    Previous cases reject that strict scrutiny depends on motive. The contrary view was expressed and rejected. The dissent puts too much faith in the court.

    The Equal Protection Clause protects individuals, not groups.

    Dissent argues that ends justify the means.

    The costs are clear: (1) distinctions based on race are odious and (2) government division by race promotes notions of inferiority and leads to hostility.

    Brown was about government classification and separation, not inequality of facilities. Brown II required system of admission on a non-racial basis.

    Kennedy Concurrence

    [Supports the Roberts opinion except for III B and IV.]


    These plans allocate benefits and burdens based on race and are therefore subject to strict scrutiny.

    Diversity, depending on its meaning and definition, is a compelling governmental interest.

    The government bears the burden of justifying a racial classification and each of the districts fail.
    • Jefferson County fails to establish how decisions are made. There is a conflict within its materials as to whether or not it applies to kindergarteners. It also fails to state who makes the decision and whether there is any oversight. Because of this ambiguity, the plan fails strict scrutiny.
    • Seattle fails because it does not make clear how its distinction between white and nonwhite furthers its goal of diversity. Thus it is not narrowly tailored and fails strict scrutiny.

    The hope is that race does not matter; the reality is that it too often does.

    The Constitution does not require that districts ignore racial isolation in schools and districts may take race into account. Several possible ways to do so while avoiding strict scrutiny are:
    1. Strategic site selection for new schools
    2. drawing attendance zone with general recognition of demographics
    3. Allocating resources for special programs
    4. Targeted recruiting of students and faculty
    5. Tracking enrollment, performance, and other statistics by race
    Districts fail to support claim that there is no other way to avoid racial isolation.

    The small number of students affected suggests districts could have accomplished same ends through different means.

    III A

    Contrary to plurality, compelling interests in remedying past intentional discrimination (Freeman) and in diversity in higher education (Grutter) do inform the analysis here.

    The dissent's view has no principled limit and would allow many government classifications based on race. It would conceivably allow Congress to make these changes nationwide and it could not be limited to schools.

    Two particular cases relied upon by the dissent don't fit:
    1. Gratz held that the race factor was invalid, which is contrary to the dissent's point.
    2. Grutter took into account multiple elements of diversity
    III B

    The court has required government discrimination in order to allow for the government to use racial classifications. The effect of de facto segregation may be the same as de jure segregation, but the state must use remedies other than racial classifications for the former, absent an extraordinary showing not present here.

    III C

    Government classification of individuals by race is dangerous. It commands people "to march in different directions based on racial typologies" and causes new divisiveness.

    Thus, just because race may be the problem doesn't mean race may be the solution.

    Thomas Concurrence

    [Supports the Roberts opinion in its entirety.]

    I A

    Segregation is not same as racial imbalance
    • Segregation: deliberate operation of public schools to carry out government policy to separate pupils solely on the basis of race. Brown says this is unconstitutional.
    • Racial imbalance: failure of schools to match demographics of student in the district. This can result from de jure segregation or private decisions. Because it is not linked to unconstitutional segregation, racial imbalance is not unconstitutional in itself.

    There is no danger of re-segregation in these districts, only additional racial imbalance.

    I B 1

    Race-based decision-making is fatal unless narrowly tailored to a compelling governmental interest.

    I B 2

    Neither case fits narrow exception to above rule for remedial measures. Seattle schools were never segregated by law and, while the Jefferson County schools were once so segregated, in 2000 the district court declared them no longer segregated.

    I B 3

    Even where a district seeks to remedy discrimination for which it was responsible, it must demonstrate a strong basis for the necessity of the remedy. Assertions of general societal discrimination are insufficient. Allegations in complaints against the Seattle School District are also insufficient.

    I C

    Racial imbalance differs from segregation for two reasons: (1) they are distinct concepts (see I A); (2) they require different remedies because racial balancing has no "ultimate remedy" nor a culpable party.


    Neither plan survives strict scrutiny because there is no compelling state interest

    II A

    Strict scrutiny applies to every racial classification.
    • Constitutional problems are not diminished by lack of intent to oppress
    • Additionally, these programs are not benign. "Racial paternalism" is "poisonous and pernicious." "Bringing the races together" results in someone being excluded, which exacerbates tensions and promotes resentment.
    • Nothing less than strict scrutiny is appropriate

    II B

    The dissent's claimed compelling interest is based on three non-compelling interests and they are no more compelling as a whole than individually.

    II B 1

    Dissent: interest in setting right the consequences of prior conditions of segregation.

    But, as discussed above, there was no segregation in Seattle and it has been remedied in Jefferson County.

    Districts have no interest in remedying consequences unrelated to schooling. It is merely speculative that school segregation affected those other conditions. Additionally, there would be no stopping point to the use of race under such a standard.

    II B 2

    Dissent: racially balanced schools improve educational outcomes for black students.

    But social science literature debates, and is therefore inconclusive about, the benefit relied upon by the dissent.

    Additionally, black student have been successful in non-racially balanced environments. Even Seattle operates a K-8 African American Academy. Thus racial balance is not necessary for positive educational outcomes.

    II B 3

    Dissent: democratic interest in reflecting a pluralistic society.

    But if government could use this goal in schools, it could use it anywhere. It has no stopping point.

    Additionally, there is no guarantee of the racial mixing necessary for asserted benefits because (1) separating students by abilities in classrooms often leads to classes of different races and (2) students may select social separation. Further, it is unclear that there is a benefit to racial mixing.

    II B 4

    Grutter is inapplicable because K-12 is unlike primary education in that (1) schools don't select their own students and (2) it doesn't involve the free interchange of ideas.

    II C

    There are only two compelling governmental interests: (1) preventing anarchy or violence and (2) remedying past intentional discrimination for which the government is responsible.


    The Constitution is color blind.

    The dissent pins its interpretation of the Equal Protection Clause on current societal practice and expectations, which is what the Court did in Plessy v. Ferguson

    The dissent is very similar to the arguments of the segregationists in Brown
    • Would rely on local experience
    • Claims result will threaten calm with race-related litigation
    • Relies heavily on judicial precedent
    • Argument that need for use of race will lessen over time is similar to argument that segregation was lessening

    Breyer Dissent

    Stevens Dissent

    [Supports the Breyer Dissent in its entirety.]

    The Chief Justice is wrong in concluding that racial classifications that don't exclude or stigmatize shouldn't be treated differently. That proposition rests on recent, non-unanimous decisions.

    In School Comm. of Boston the Supreme Court affirmed a ruling upholding a state law mandating integration which used racial classifications. That decision was more faithful to Brown than this one.

    No member in the court in 1975 (when Stevens joined it), which was faithful to Brown, would have agreed with this decision.