Perhaps Not All Affirmative Action Is Created Equal

The New York Times
Perhaps Not All Affirmative Action Is Created Equal
By JEFFREY ROSEN
Washington

NOW that the Supreme Court has agreed to hear two cases challenging racial balancing in public schools, some conservatives hope the end of affirmative action is near.

After all, they say, why would the Supreme Court suddenly agree to hear cases about racial balancing in Seattle and Louisville when the court — with Sandra Day O'Connor still serving — refused last December to hear a similar case from Massachusetts? It must be, the thinking goes, that the court, with two new and more conservative justices, John G. Roberts Jr. and Samuel A. Alito Jr., wants to overturn affirmative action.

That optimism may be premature, and not because there is a hidden liberal streak on the court. Instead, there is a vigorous debate among prominent Republican judges and legal scholars about whether racial balancing in public schools is an acceptable form of affirmative action. Some conservatives believe that racial balancing plans, while not colorblind, are still constitutional.

The unexpected fissures among conservatives about how colorblind the Constitution should be suggest that certain forms of affirmative action might be more acceptable to conservatives than liberals had feared.

The Seattle and Louisville cases, which the Supreme Court will hear next fall, involve challenges to plans known as "managed choice" or "open choice." In Seattle, parents can apply to send their children to any public high school in the district.

If a school is oversubscribed, students are chosen based on a number of "tie-breakers," including racial targets designed to ensure that each school's racial makeup doesn't differ by more than 15 percent from the racial composition of the Seattle public schools as a whole.

Last October, no one was surprised when the famously liberal United States Court of Appeals for the Ninth Circuit upheld the Seattle plan. It cited a 2003 Supreme Court opinion, by Justice O'Connor, which held that classroom diversity was a compelling governmental interest for law schools and universities.

But it was eye-opening that Judge Alex Kozinski, a conservative libertarian on the Ninth Circuit, wrote an unexpected concurring opinion. "That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability," he wrote.

And Judge Kozinski quoted the opinion of Chief Judge Michael Boudin of the United States Court of Appeals for the First Circuit, another Republican judge, who upheld the use of racial balancing in a Massachusetts school choice plan. Unlike "modern affirmative action," Judge Boudin had written, these plans do not "seek to give one racial group an edge over another."

Some conservative scholars suggest that there may be significant differences between racial balancing for public elementary and high schools and racial preferences for competitive public universities.

"When you're talking about public schools, everybody's got to go somewhere, and it's not as if some schools are necessarily better than others," said Charles Fried, a conservative law professor at Harvard. "At some point, the government has to have some basis for breaking the tie."

Professor Fried said he had not made up his mind on the issue. "I think Roberts and Alito are both men who are open to arguments, and I would trust them to think long and hard about this," he said.

Conservatives have also long emphasized the importance of deferring to local school officials, a reaction in part to judicially imposed busing programs.

In the Seattle and Louisville cases, the plans were designed by local politicians.

"This is not the result of some liberal master plan; it was adopted from the ground up, " said Samuel Issacharoff, a liberal legal scholar at Columbia Law School. Judicial deference is as deeply held a conservative principle as the importance of a colorblind society, and conservative judges and activists are conducting a vigorous internal debate about how these principles should be reconciled.

Last year, for example, the Supreme Court, in another opinion by Justice O'Connor, struck down California's policy of racially segregating new prisoners to prevent gang violence. Justice Clarence Thomas and Justice Antonin Scalia, ordinarily fierce champions of colorblind policies, argued that an exception should be made in this case because of the importance of deferring to the expertise of local prison officials.

Opponents of affirmative action don't buy conservative arguments that racial balancing is acceptable. Parents don't view all public schools as equal, they argue, so racial tie-breakers force some parents to send their children to worse schools farther from home because of their race.

"In some ways, the damage may be greater than in the university context, since this may limit the ability of black families to escape inferior schools by transferring to schools where the authorities deem there to be too many blacks," says Peter H. Schuck of Yale Law School, author of "Diversity in America," a prominent critique of affirmative action.

In the Seattle case, the conservative dissenting judges wrote that the educational benefits of diversity for university students were less obvious for lower-school students. The dissenters quoted David J. Armor, a George Mason professor who has reported finding little connection between racial integration and student achievement.

"Where we have had very substantial long-term desegregation, we did not find the achievement gap changing significantly," Mr. Armor said in an interview. "I did find a modest association for math but not reading in terms of racial composition and achievement, but there's a big state variation."

Professor Armor estimated that "at least dozens or maybe hundreds of school districts still use race in some way" and said he hoped that the Supreme Court would put an end to all race-conscious assignment plans. "We have racially imbalanced neighborhoods and cities based on where people choose to live. What's wrong with racially imbalanced schools?"

IF the court agrees with him, it might require districts to consider "race-neutral alternatives," like a lottery, to decide which students gain admission to popular schools. But given segregated housing patterns, that might mean the end of integration.

Chief Justice Roberts, in his first term, has shown a skill in persuading his colleagues to join unanimous opinions decided on narrow grounds. The race cases may test his leadership abilities more than any he has confronted so far. And the fact that conservatives disagree so vigorously about how to apply the principle of colorblindness in different contexts makes the outcome especially hard to predict.

Jeffrey Rosen's latestbook is "The Most Democratic Branch: How the Courts Serve America."