Can a government choose our children’s schools based on “considerations” of race without engaging in racial “discriminations”? That’s a question with which the U.S. Supreme Court, by virtue of its own hair-splitting, has been tangling for years.
A case decided earlier this month in California’s Alameda County — sure to be appealed to higher state or federal courts — shows why judicial hair-splitting on racial issues is so counterproductive. For every strand of apparent reason that emerges, another strand of faulty logic invites newly inventive efforts at race-based micromanagement. That leads, of course, to more court cases.
In American Civil Rights Foundation (ACLF) v. Berkeley Unified School District, county Superior Court Judge Winifred Smith approved the district’s unique attempt to make each school’s student body “reflect the racial and socioeconomic diversity of the total elementary school population in the school’s attendance zone, within a target range of plus or minus 5 to 10 percent.”
It did this not merely by considering each individual student’s race, but by calculating an overall “diversity category” value for each neighborhood of between four and eight square blocks, and allocating the students from those neighborhoods accordingly. Two other factors — parental income and parental education level — are each weighted equally with race in the rather complicated formula.
The immediate issue at hand in ACLF v. Berkeley was whether the district violated California’s constitution. But national constitutional issues surely will come into play during the appeals process — and many of the specific legal considerations parallel ones that arise repeatedly in federal court.
Judge Smith reasoned that because race was only one of three considerations at play, and because it was a neighborhood’s racial makeup rather than the individual’s race that was taken into account, the program does not violate bans against racial discrimination. In short, she wrote, the school district “never allow[s] race to be a determinative factor.” [Emphasis mine.]
In a footnote, she specifically cited as precedent the 2003 U.S. Supreme Court decision in Grutter v. Bollinger, the University of Michigan case that reaffirmed the notion that “student body diversity is a compelling state interest that can justify the use of race” among other factors in admissions decisions.
But Grutter’s logic was quite opaque. And it was decided contemporaneously with another Michigan case, Gratz v. Bollinger, which ruled unconstitutional an admissions diversity plan that used a “mechanistic” mathematical formula that awarded bonus points to racial minorities.
If ACLF v. Berkeley reaches the federal courts, will they be more impressed with the school district’s Grutter-supported consideration of race among several other factors, or will the federal judges instead cite Gratz to look askance at the district’s precise mathematical formula?
And how will ACLF v. Berkeley be affected by two cases argued before the U.S. Supreme Court earlier this year (especially Parents Involved in Community Schools v. Seattle) in which race is used as a “tie-breaker” in determining assignments of students at particular schools? The Seattle plan applies a specific mathematical range (albeit a rather broad one) within which the percentage of racial minorities at any particular schools must fall.
Many observers predict that the Seattle system will be overturned — but it’s anybody’s guess as to whether the justices will try to distinguish it from Grutter or, instead, directly overturn Grutter.
If they try to distinguish it — in short, try to squeeze it between the Scylla of Grutter and the Charybdis of Gratz — they will effectively impose yet another confusing layer of legal hair-splitting on lower courts trying to decide cases such as ACLF v. Berkeley.
The liberal U.S. 9th Circuit Court of Appeals approved the Seattle plan, but Judge Carlos Bea and three others dissented. Citing ample court precedent, Judge Bea wrote in a footnote that “we must be especially suspicious of any compulsive government program based upon race, even when such a program is supposedly beneficial. … History is rife with examples of well-intentioned government programs which later caused grievous harm.”
If the Berkeley school district abandoned race as a criterion while stillassessing parental income and parental education levels, it still would, almost assuredly, achieve racial diversity in the process — even without focusing minds and hearts, and lawyers, on racial distinctions.
A Supreme Court that would stop splitting hairs and instead forbid, on solid constitutional grounds, all intentional racial considerations, would be one that stopped ensnaring school districts such as Berkeley’s in legal traps and allowed them to concentrate on their educational missions.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator.
