Revisiting Affirmative Action

The Supreme Court has decided to revisit the issue of race-based admissions, this time in K-12 schools. In 2003, in a pair of cases involving the University of Michigan, the Court handed down decisions that pleased neither side in the debate. On the one hand, the Court sided with affirmative action proponents by allowing schools to use race as a "plus factor" in deciding whom to admit. But the Court also said efforts to achieve racial "diversity" had to be narrowly tailored and could not utilize rigid point systems like the one adopted by Michigan for undergraduate admissions.

One thing was clear at the time — the Michigan cases would not be the final word on the subject. So, once again, the Court is faced with having to decide whether a little bit of racial discrimination is OK, so long as it’s employed in the service of achieving "diversity."

The new cases, which will be argued in December, involve school systems in Seattle and Louisville, Ky. Of the two, Seattle is the more interesting. Unlike Louisville, Seattle has no history of operating a racially segregated school system, which has usually been the basis for court-ordered programs to achieve racial balance. And, Seattle has substantial Asian and Hispanic populations in addition to blacks and whites.

Nonetheless, the city school board decided to list "diversity" as an educational goal. The board adopted an open admissions policy that allowed students to attend any high school of their choosing — so long as the school’s racial balance was within 15 % of the city’s overall racial composition: 60 % minority and 40 % white.

But some schools will always be more popular than others. In schools where the demand exceeds the available slots, the school board decided that preference would be given first to siblings of students already attending the school, and second to students whose race would tip the school’s balance toward achieving the 60/40, minority/white ratio. A group of white parents sued the school system when their children were denied admission to Ballard High School, one of the city’s best and most popular schools.

The 9th Circuit Court of Appeals upheld the diversity scheme in an unusual 7-4 en banc decision, reversing a three-judge panel that had struck down the plan. But no one is quite sure what the Supreme Court will do, especially given the changes on the Court itself. Former Justice Sandra Day O’Connor was the swing vote in the Michigan cases, voting for race as a factor in admissions to the law school, but striking down the university’s undergraduate admissions program that granted extra points to black and Hispanic applicants. All eyes will be on the Court’s newest members, Chief Justice John Roberts and Justice Samuel Alito.

This set of cases will give the Supreme Court the chance to get it right, finally, on whether there can ever be a good reason to discriminate on the basis of race. The Court blew it when it had the chance to do so in the Michigan cases, choosing to allow a little bit of discrimination. But in issues of racial discrimination, there can be no middle ground. Judging someone by the color of his skin is wrong, period. You can’t undo past wrongs by perpetrating new ones, even on a temporary basis, as the Court tried to do in the Michigan cases by suggesting affirmative action was needed for another 25 years.

And in Seattle, there is not even the excuse that some past wrong must be righted (not that there was such justification at the University of Michigan, either). The Seattle plan is a quota system by another name. Whenever a school reaches its quota of white students (or minorities), no more students from that racial group may attend, with a few minor exceptions for siblings.

It’s time the Court returned to the principles of Brown v. Board of Education, the landmark 1954 case that struck down racial segregation. Race has no place in the assignment of students to public schools.