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.


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

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.


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.


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

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.


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.]


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.


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


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


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.


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.

Thursday, June 28, 2007


As most of you are undoubtedly aware, the Supreme Court today handed down an opinion of great importance; indeed, it was the opinion I had been most eagerly anticipating the entire term. The case dealt public schools and the use of race in school assignment. The result was worse than anticipated, though not as bad as feared.

Here at A CiviL Union, we promise that every time the Supreme Court reverses course on over half a century of solid jurisprudence on race, we'll mention it.

It occurs to me that I intend to do far more mentioning than is reasonable for a single post, so I've decided to divide my commentary into several post. For those who want to follow along at home, I recommend reading the opinions here (as I am about to do).

Tomorrow night, look for an outline of the arguments of each of the opinions. This weekend, look for an analysis of what this all means.

[Edit: The "tomorrow night" estimate may have been a touch unrealistic. At 10:20pm (2.5 hours later) I've only read and outlined the majority/plurality opinion. The outlines - which will be as objective and fair as possible - will be posted just as soon as I have them all prepared]

Sunday, June 24, 2007


The Washington Post has done a marvelous piece on Vice President Cheney's role in the White House. It's long and it's the first of two articles, but it is an absolute must-read for anyone wishing to gain an insight into the Bush White House. In some ways, it confirms what we have known all along: that Cheney wields inordinate power in the Bush Administration. Indeed, it reveals this in rather terrifying form. In other ways, though, it presents a picture we haven't seen: a White House divided, pitting Cheney against the likes of Ashcroft, Powell, and even Rice.

At the end of the day, the article seems to depict a Vice President who has no concern for accountability or the opinions of others. Not an "evil" man, but one thoroughly consumed and corrupted by power and given the degree of power he wields within the Administration he poses a grave danger to our constitutional structure.

Thursday, June 21, 2007

Speaking of racism...

Just heard of this story from The Stranger's blog - apparently, the Bush appointee in charge of the civil rights division of the Justice Department has been found to have fired a handful of successful civil rights attorneys in the department in order to "make room for some good Americans."

Which, as we know, means Americans who did not vote for John McCain in the Republican primary:
"[Bradley] Schlozman raised the question of partisan politics bluntly in the fall of 2004, they said, when asking appellate supervisors about the 'loyalty' of division lawyer Angela Miller, who had once clerked for David. B. Sentelle, a conservative federal appeals judge. He told Miller's bosses that he learned that she voted for McCain in the 2004 Republican primary and asked, 'Can we still trust her?'"
And that's how they treat Republicans! The Washington Post makes clear that the entire Civil Rights division of the Justice Dept. has languished under Schlozman's "leadership."
"The Bush administration, largely under Schlozman, hired seven members as replacements or additions to the 14-lawyer appellate section where Stevens, Calderon and Kwong worked (former civil rights attorneys who say they were dismissed for political reasons). They included six whites, one Asian and no African Americans." (keep in mind this is the civil rights division)

"Appellate lawyers said that before Schlozman arrived, the small staff enjoyed a collegial work environment generally free of partisanship. Its lawyers concentrated on framing constitutional arguments for pending judicial decisions on hot-button issues such as voting rights, racial discrimination and religious freedom."

"Schlozman and several deputies also took an unusual interest in the assignment of office responsibility for appellate cases and, according to the lawyers and one of the supervisors, repeatedly [taking] cases away from career lawyers with expertise and [handing] them to recent hires whose résumés listed membership in conservative groups, including the Federalist Society."
Fortunately, Schlozman is no longer at the post where he did this terrible puppetry for the Bush Administration, and two of the four attorneys profiled in the Post story are back at their old jobs.

Unfortunately, Schlozman left his civil rights job because he was appointed the interim U.S. attorney in Missouri. His tenure there reflected his job performance with the Civil Rights division:
"...[Schlozman] was hired without any prosecution experience, and [he] brought voter-fraud charges against a liberal voting organization five days before the election in a heated congressional race."
Today, the man works with the Executive Office for U.S. Attorneys. Splendid.

Perhaps one of many reasons racism persists in our society is that our leaders continue to feed it through incompetent, unethical governance.

Overt Racism - Alive and Well

Today's New York Times contains an absolutely shocking piece detailing racial incidents at a rural high school in Colorado. In essence, several students and parents were upset with the local coach, who is African-American. What ensued was just terrible:

  • A parent at a game said he was going to paint his son black and used what the Times refers to as "an obscene racial epithet to describe the type of person who could play on the team."
  • Students harassed another white student, using a racial epithet, who was friends with an African-American student.
  • A group of students loudly discussed forming a club called the "Lynch Mob" or the Klan."
  • Several of the players formed a breakaway basketball team they called the "Running Rebels" and showed up to a basketball camp wearing shirts with the Confederate flag.
  • Later, someone raised a Confederate flag over the school and students began painting it on their cars.
  • Four seniors posed for a picture, holding guns and giving a Nazi salute, which was posted on the Internet.

Of course, the individuals responsible insist that it was not racism, it was just a misunderstanding. Evidently the Confederate flag was merely a symbol of rebellion with no racial overtones. Apparently the Nazi photo was merely a "big mistake" that was not racially motivated. I hope my profound skepticism may be forgiven.

I have no deep analysis of this to offer; I merely put this forward as yet another example that, contrary to popular belief, racism is NOT dead. Of course, racism will not always be as obvious as this; oftentimes it is far more subtle but no less poignant. In every case, it is an evil we must continue to vigilantly watch for and confront at its every instance.