Today in America—a century and half after the passage of the 14th Amendment to the U.S. Constitution, a half-century after Brown v. Board of Education, and more than four decades after the Civil Rights Act of 1964—schoolchildren can still be kept out of public schools because of the color of their skin.
Yes, you want your child to go to a particular school that's supposedly open to all students in your district. But if there's competition for spots in the school, your child won't be able to attend simply because of his race. Never mind if your kid comes out of poverty or a broken home. Never mind the 14th Amendment's equal protection clause or the Civil Rights Act's Title VI ("No person ... shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination ... "). District officials have taken it upon themselves to decide how many students of a certain race each school can enroll, and your kid will be subjected to discrimination based on his race.
That's the Seattle school plan that the U.S. Supreme Court agreed this week to consider, along with the similarly foul enrollment program in Louisville, Ky. Seattle set up a system of race-based admissions not because the district had a history of segregating schools. There was no such history. The district simply decided each school should be 60 percent minority and 40 percent white in order to reflect the city's overall racial breakdown—because it believes diversity is a good thing for schools and society. When more students seek to attend a school than there are spaces available, the race of the student seeking admittance becomes the second tiebreaker, if the child's race would tip the balance at the school in the direction of 60-40. (Having a sibling at the school is the first tiebreaker.)
Let's assume Seattle's "Sesame Street" diversity pronouncements have merit. Let's assume further that the Supreme Court's 2003 rulings on the benefits of diversity in higher education admissions apply to the K-12 education. Does a program like Seattle's satisfy the court's longstanding "strict scrutiny" standards when race is a classification factor?
Some Supreme Court watchers believe—and reverse-discrimination buffs fear—that the high court might have taken up the Seattle and Louisville cases to revisit its previous diversity holdings. But it's just as likely that the court could throw out the districts' enrollment plans without touching the diversity argument. An opinion by Judge Diarmuid O'Scannlain of Portland, Ore., shows the way.
Even if a race-based program advances a compelling state interest—say, promoting diversity—it must still meet other requirements. It must be narrowly tailored, flexible and time-limited. It must not amount to a racial quota. The agency instituting a racial preference must work to minimize its adverse impact on unfavored group members and have given serious consideration to race-neutral alternatives.
A three-judge panel of the 9th Circuit Court of Appeals considered Seattle's program, and O'Scannlain wrote for a majority that found the program unconstitutional. The district put forward a legitimate government interest for the program, but that was it. It flunked all the other tests.
"Taken alone, any of these shortcomings would doom the School District's program," O'Scannlain wrote in 2004. "Together, they reveal an unadulterated pursuit of racial proportionality that cannot possibly be squared with the demands of the Equal Protection Clause."
Yes, the Supreme Court held in its 2003 Michigan cases that diversity in higher ed is a "compelling state interest." But it's worth recalling that the court didn't give universities a license to do just anything in the name of diversity. One of the Michigan programs was flexible and holistic—students were given "individualized consideration" and race was one factor among many—and the court deemed it constitutional. The other, race-based point system was mechanistic and conclusive—race was the decisive factor—and the court found it unconstitutional.
A larger panel of the 9th Circuit ultimately upheld the Seattle district, but the Supreme Court could soon see the race-based constitutional problems Judge O'Scannlain detected in a program that is "virtually indistinguishable from a pure racial quota."