Seattle School Decision

Here are a few points for us to discuss in class:

• In Grutter, although the Court upheld racial educational diversity as a compelling state interest, it explicitly stated that the use of racial classifications to achieve " outright racial balancing...is patently unconstitutional." p. 859  Did the student assignment plans in Seattle School amount to racial balancing or were they narrowly tailored to achieve educational diversity?
• See p.889 and its discussion of Grutter--did the pupil assignment plan in Seattle School make a holistic, individualized assessment of each student and employ race only "as part of a broader assessment of diversity, and not simply an effort to achieve racial balance"?
• Is the basic difference between the dissent and the majority one over the standard of review? In other words, is the Majority properly applying strict scrutiny and the Dissent in effect saying that a lower, more deferential, standard of review should be employed to evaluate "good" uses of race? How do we know which uses of race are good and which are not good?
  
• A personal note: I have a friend--a law professor who has argued powerfully in print in support of race-conscious student assignment plans for the public schools (much like the ones in this case); and this professor recently visited for a year at a law school in a large urban area, and planned to rent a very nice house located in a very nice neighborhood near the law school. However, when she discovered that her children would not be assigned to the very good neighborhood school, but rather would be assigned on account of their race and bussed to an inner-city school for the purpose of racial balancing, she refused to rent the house and rented alternative housing and made other school arrangements for her children. When I asked her about this--and suggested cheerfully that she had rejected a wonderful opportunity to live out her own theory of the good life--she got annoyed with me and said: "There is always an exception for your own children." What do you think of this kind of reasoning? If there is always an exception for the children of elite law professors, is there also always an exception for the children of non-elite others, such as the parents in Jefferson County who wished their children to attend a school located one mile from home rather than one located 10 miles from home? See p.888
• Notice both the Majority and the Dissent claim the mantle of Brown in support of their arguments. One side says Brown is best understood as standing for the principle that children should not be assigned to public schools on the basis of their race. The other side says Brown is best understood as permitting racial assignments so long as they are being employed to achieve greater integration. Whom do you think has the better of this argument? Martha Nussbaum says that Chief Justice Roberts failed to understand the difference between using race "to include or exclude." But, of course, when pupils are denied a school assignment on the basis of race, even if the purpose is some notion of good racial balancing, the effect is still to exclude that child on the basis of her race from a school she is otherwise qualified to attend. No?
• Although Chief Justice Roberts normally speaks with a soft voice, here is rhetoric is strong: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (P. 892).
• Now consider Justice Thomas accusing the dissent of "replicating" the arguments made by the "segregationists" defending segregated schools in Brown! He explicitly endorses a "color-blind Constitution." (p. 893)