Three years after the U.S. Supreme Court missed a golden opportunity to strike a blow for the principle that all citizens enjoy the equal protection of the law, the purportedly new and improved court is getting another chance.
The issue at hand is remarkably similar to the case involving the University of Michigan’s race-conscious admissions standards, except that it concerns public schools instead of higher education. The case revolves around school districts in Seattle and Jefferson County, Ky., that instituted policies designed to — what else? — increase racial diversity. As usual, this meant unconstitutionally discriminating between students on the basis of race.
(The fact that judicial activists persist in the advancing the fantasy that such policies comport with the Constitution does not in any sense make it so. It only means that Americans are coerced into complying with this pernicious notion until the Supreme Court has the integrity to reverse it.)
In Seattle, the program — which was discontinued following a legal challenge — established a "tie-breaker" system that (just as Michigan did) attempted to meet an approximate target level of racial representation. The result was that non-favored students were often cast as sacrificial lambs on the diversity altar.
The Kentucky case was much the same, in which a mother sued the school district when it decreed that her son could not attend the school across the street from the family residence because he was of the wrong skin-color.
Both programs were lamely upheld on appeal, despite the obvious compromising of certain students’ rights based solely on race. The same old platitudes were used as justification: that no specific quotas were required and that race was "only one factor" taken into account.
As in the Michigan case, the fact that such systems can easily be manipulated to produce de facto quotas was conveniently overlooked.
This is all highly reminiscent of the heyday of forced busing, in which courts that found school districts guilty of deliberate segregation issued consent decrees mandating "remedies" that entailed punishing non-culpable citizens because of their race — rather than simply making sure the schools stopped discriminating.
(Apparently, a "consent decree" means that a citizen’s constitutional rights can be violated if a court gives its consent.)
But in the Seattle case, no court has found anyone guilty of a systematic effort to exclude minorities.
Sharon Browne, principal attorney for the Pacific Legal Foundation, which is involved in the arguing the case against the Seattle schools, says that the determinations regarding race are merely arbitrary.
"Each of these schools already have a racial mix," she says. "It’s the administrators who have decided what is the ‘appropriate’ mix. And when the schools start discriminating on the basis of race, that violates the Equal Protection Clause."
(In the Kentucky case, there was a consent decree issued in 1974, but that has since been lifted. Thus, there is no longer any requirement that the district continue to discriminate by race.)
Ultimately, the crux of this issue is the interpretation of the term "segregation." That is, does it mean what it has traditionally been understood to mean — namely, institutionalized discrimination against a particular group (as in the landmark Brown vs. Board of Education case where the pernicious "separate but equal" doctrine was rightly abolished)? Or is it yet another instance where a previously clear standard is redefined to introduce a concept plainly antithetical to the Constitution?
As usual, advocates of race-conscious admissions criteria cite rationale that for the court to accept would require judges to assume the role of legislators at the cost of upholding the self-evident intent of the Constitution.
Activist judges, of course, have been all too willing to oblige, thus creating perhaps the greatest domestic crisis America has ever faced: the threat of losing its heritage of self-government to an unelected, unaccountable elite that would impose an unwanted social agenda that not only contradicts the notion of legal equality, but openly mocks it.
The first major hook on which the racial bean-counters hang their case is the dubious assertion that such a policy is necessary to prevent "re-segregation."
But Ms. Browne says this argument is misleading because it not only is based on a revisionist definition of segregation, but that it implies a danger that does not exist.
"Segregation refers to state action designed to keep students apart," she says. "But I would challenge anyone to find a school district today that actually has a policy in place to segregate students."
The other likely assertion to be made in favor of categorizing people by race is the hackneyed ‘benefits of diversity’ claim that was advanced by the University of Michigan.
But here, Ms. Browne points to an important distinction between higher education and public schools.
"Universities give each applicant individualized consideration," she says. "But there are so many more primary and secondary students that it would be administratively impractical to have school administrators to look at every single one to try to determine how their life experiences could might contribute to the academic environment."
"So in this case race would become the decisive factor in admissions decisions."
However, the larger point is that this counter-argument shouldn’t really even have to be made, for the simple reason that the diversity argument is a philosophical, not a legal one — in fact, it’s a classic example of the kind of social engineering that has poisoned the court system for so long.
This has been particularly harmful because once the Pandora’s Box was opened whereby alleged social desirability started trumping the Constitution, the concept of equal rights before the law — the bedrock principle of our entire society — became gravely imperiled.
The obvious question is whether the new composition of the U.S. Supreme Court will tip the scales from the Michigan decision in which Justice Sandra Day O’Connor wrote the majority opinion allowing race to remain a factor — albeit in altered form — in University admissions.
With her now safely retired, there appears to be some grounds for cautious optimism.
The very fact that the Seattle and Kentucky cases were granted review after a similar petition in Massachusetts was denied when O’Connor was still on the bench seems to indicate a emerging new perspective.
Though forecasting the Court’s decisions is still a tenuous business — especially with Justice Kennedy showing signs of wavering recently — many hold out hope that a victory for the clear meaning of the Constitution in this instance will open the door for a long-overdue rollback of the noxious preferential treatment that has so polarized our society in the name of fairness.
Still, in order to avoid the trauma of a major upheaval every time the Court changes, perhaps this issue can be settled in another way.
If the liberals are so sure that diversity should take precedence over equal rights, why don’t they just propose a constitutional amendment to suspend the Equal Protection Clause in such cases?
For some reason, one doubts they would be amenable to that, because then they’d have to actually submit their pet notion to the public instead of simply finding sympathetic judges to run interference for them.
They know very well what the outcome of such a debate would be — maybe then we could dispense with this nonsense, and start treating people as individuals instead of statistics.