Monday, December 4, 2006
WHEN THE Supreme Court hears oral arguments today about race-based school placements in Seattle and Louisville, the justices may be tempted to see the cases as the latest showdown over affirmative action. One side casts the matter as a simple issue of governmental race-consciousness; the other talks of diversity. Yet the programs at issue are not classic racial preferences. They deserve to be considered -- and upheld -- for what they are.
A society committed to equal protection under law necessarily finds it uncomfortable whenever government considers a person's race in deciding how to treat him or her -- even if the goal is laudable. But these programs use race in a fashion quite different from those that have inspired the court's skepticism in the past. While the Louisville and Seattle programs differ, neither gives members of any particular race a boost at the expense of any other. Rather, the programs respond to residential segregation patterns by giving minority students preference in preponderantly white schools and white students preference in preponderantly minority schools.
In Seattle, for example, students can generally go to whatever high school they want, subject to available space; race is used as one of several tiebreakers for those more popular schools that become overenrolled. Some of these schools are predominantly white, some predominantly nonwhite. To be sure, such a program has victims -- people who get turned away from the schools of their choice because of their race.
But as Judge Alex Kozinski, a conservative member of the U.S. Court of Appeals for the 9th Circuit, wrote in an insightful concurring opinion on the Seattle plan, this type of race consciousness is different from affirmative action, or government-sponsored segregation. It "is not meant to oppress minorities, nor does it have that effect. . . . There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another."
The irony, in fact, is that the Louisville plan essentially continues a desegregation program the city adopted under court order as a remedy for past segregation. How can it be that the doctrine of equal protection now forbids the very steps it once required? The question here boils down to whether local school boards should be blocked from any race consciousness in taking even the most modest steps to ensure that children growing up in a multiethnic society go to school with people who don't look like them. For a variety of reasons, Americans still tend to segregate themselves residentially, which would prevent many schoolchildren from attending racially diverse schools absent some intervention to encourage it. It makes no sense to construe the Constitution as prohibiting such actions.