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The School Intergration Cases July 18, 2007

Posted by Sobek in Law, Politics.

I’ll put the warning right up here at the top. Unless you are a lawyer and/or deeply interested in lawyerly things, you will very likely find the following discussion of Parents Involved in Community Schools v. Seattle School Dist. No. 1 to be very boring. (Warning: link goes to lengthy .pdf file). By reading the whole thing, you expressly agree to assume the risk that you will be bored. The author of this post assumes no liability for any feeling of ennui, pall, fatigue, weariness, disgust, distaste, or other forms of boredom. The legal opinions and commentary discussed herein may be described as “obtuse.”

First, a few notes.

1. Because the official reporter page numbers have not been released, all citations are to the .pdf document linked above. The citation “Stevens at 2” refers to the second page of Justice Stevens’ dissent in that format. [Uh, that may have changed since I first started writing this draft a week or two ago].

2. A lot of the argument between the majority and the dissent is over the meaning of applicable precedents. Roberts’ majority says “our precedents say there’s no lower standard for affirmative action cases,” and Breyer’s dissent says “nuh-uh!” (I’m paraphrasing a bit). I won’t offer a full analysis of the old precedents, because this post is going to be long enough as it is, and it’s already taken me too long to read and analyze just the one case.

3. I realize I’m writing to an audience of both lawyers and non-lawyers. If I start using legalese that doesn’t make sense, please feel free to let me know and I’ll try to translate into normal-human-ese.


This is a consolidated action discussing two school high school and elementary school integration plans. School districts in Seattle and Kentucky formed race-conscious plans to help integrate the schools using mandatory, race-conscious measures. The question is whether the Equal Protection Clause of the Fourteenth Amendment forbids such race-conscious measures. By a narrow majority, the Supreme Court said it does, although Justice Kennedy’s concurrence states some race-conscious measures might be appropriate — just not these specific measures.

Chapter 1: A Tale of Two Plans

A. In Seattle, the plan affects ten high schools within the city. Four schools in the north — Ballard, Nathan Hale, Ingraham and Roosevelt — are in predominantly white parts of the city. Five schools in the south — Rainier Beach, Cleveland, West Seattle, Chief Sealth and Franklin — are in predominantly non-white areas (non-white including blacks, latinos, asians and Native Americans). Another school — Garfield — is in the center of the city.

Seattle has never operated legally segregated schools (i.e. the district has never been subject to a statute, ordinance or other legislatively-enacted law that mandated separation of students by race). Nevertheless, because of housing patterns within the city, the schools self-segregated to a large degree, such that the southern schools were non-white and the northern schools were white.

As a result, the Seattle school district has tried a variety of strategies to achieve racial balancing in the schools. Most recently they adopted a plan that including intentionally drawing district lines to maximize integration. They also adopted an application program that is the subject of this dispute. When too many students apply at a given school, the district employs a series of tiebreakers to determine which applicant gets the spot. The first tiebreaker is for students with siblings already enrolled at the school. The second is expressly race-based, and depends on the race of the applicant and the racial composition of the school. All students in Seattle are either classified as “white” or “non-white.” If a given school’s student population is not within ten percent of the overall community racial percentagers (in 2000, approximately 41% white and 59% non-white), then the school is not racially balanced. If a white student applies for a school that is unbalanced in favor of whites, his application will be denied. If a black, Asian, latino or Native student applies for a school that is unbalanced in favor of non-whites, the application will be denied. This denial takes effect regardless of how close the student lives to the school, or whether the school has any special needs which can best be met at that school

B. In 1973, a federal court held that the Louisville, Kentucky school district was segregated, and ordered it to desegregate pursuant to Brown v. Board of Education. The district operated under a desegregation plan until 2000, when the district court found that it had integrated as much as practicable. The district then sought to voluntarily maintain the plan afterwards, and that plan was the subject of this case.

The district’s plan classifies all students as either black or not black. Each school is required to maintain its black population of between 15% and 50%. If a school reaches one of these two extremes, any transfer request that will contribute to the imbalance will be denied.

Chapter 2: The Court’s Decision

For all practical purposes, all state courts, federal district courts, and federal appellate courts to hear any aspect of these cases affirmed the plans, and denied relief to all plaintiffs. The Supreme Court reversed.

Chapter 3: Chief Justice Roberts’ Opinion

Chief Justice Roberts wrote the Court’s decision, and was joined in full by Scalia, Thomas and Alito. Justice Kennedy concurred in part, providing the fifth vote to strike down the plans. But Kennedy did not join the whole opinion, so the rule of the case is somewhat confused.

[Note to the lawyers: the first issue concerned standing and mootness. I’m skipping this part as too obvious to merit attention]

Roberts first noted that Equal Protection challenges based on express racial classifications are subject to strict scrutiny. There are three levels of scrutiny under the Constitution: rational basis (which means the law is almost guaranteed to be upheld), intermediate review, and strict scrutiny (which means the law is almost guaranteed to be struck down).

In order to survive strict scrutiny, a law must (1) serve a compelling government interest, and (2) be narrowly tailored to achieve that interest.

A. No Compelling Interest

Roberts discusses the precedents at length to show that racial classifications in school settings have only been found compelling in two circumstances: to remedy the effects of past, intentional discrimination; and to achieve diversity in higher education. Roberts points out that neither of these options are available. Seattle never had Jim Crow laws, never had any statute that said blacks had to be segregated from whites, never had any local ordinances, never had any express school district policies, etc. Kentucky did, but a federal court held in 2000 that it had already remedied the effects of that past discrimination as much as possible. And neither the Seattle nor the Kentucky plans had any effect whatsoever on higher education. Perhaps more to the point, Roberts then argued that the Supreme Court had never accepted the argument that simple racial balancing, or a quota system, is a compelling interest.

Roberts also noted that these plans had very limited notions of “diversity” anyway. In Seattle, there is no difference under the plan between black students and Asian students, for example. Thus, Seattle did not

demonstrate in any way how the education and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent Asian-American, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially conentrated. Roberts at 19.

The Louisville plan was similarly flawed, at least in practice. The lead Plaintiff in that case was a white student who applied to a kindergarten that was 46.8 percent black. The school rejected the application, even though the transfer would actually have brought the school further from one of its percentage extremes. (That the school was unable to explain its reasoning in denying the application played a significant role in Kennedy’s finding that the plans were unconstitutional). As a result, that kindergartener was denied access to two schools within a mile of his home, and forced to go to a school that — according to a cnn.com story (but not stated in the opinion) was an hour and a half away by bus.

Roberts also rejected an attempt by the schools to recast an attempt at racial balancing as “racial integration.” As long as the purpose of the plans was to get the schools to reflect the approximate racial composition of the district as a whole, it was impermissible balancing regardless of the name given to it.

Next, Roberts noted that the plans are not narrowly tailored in any event. It’s kind of hard to follow Roberts’ argument on this point — he basically equates narrow tailoring with whether the plans are effective, or have a large impact. He cited statistics to show that only a small percentage of students were ever affected by the racial standards — but it seems to me that a minimal impact is evidence that a plan is narrowly tailored, rather than proving it is not. I think the far better argument comes from the block-quoted observation above — that Seattle’s ham-handed treatment of diverse races as the same thing leads to absurd results. Roberts also states that the districts failed to consider workable race-neutral alternatives, about which I will have more to say later.

In the final section of his opinion (not joined by Kennedy), Roberts explains why he rejects Breyer’s reading and application of the controlling precedents.

Chapter 4: Justice Thomas’ Concurring Opinion, or “How I Learned to Stop Worrying and Love Tearing Justice Breyer a New Asshole”

Justice Thomas expressly devotes his 36-page concurrence to bashing Justice Breyer’s dissent: “Disfavoring a color-blind interpretation of the Constitution, the dissent would give school boards a free hand to make decisions on the basis of race — an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education.” (Thomas at 1-2). Ouch. Probably his best argument on this score is when he notes that so-called “benign” racial classifications — i.e. affirmative action — are not always obviously benign. He observes that the segregationists in Brown claimed they were doing what was best for the black students — hey, it will be hard for them to have to endure bussing programs, they’re more comfortable around their own kind, etc. The Court didn’t simply take the school board’s word that their motives were pure in Brown, and there’s no reason to reverse that approach now.

Thomas points out that Breyer frequently conflates the difference between segregation and racial imbalance. The former is a state-mandated separation based on race. It necessarily involves a statute or ordinance that says blacks and whites are not to enjoy the same facilities — and Breyer cannot deny that such never occurred in Seattle, and that Kentucky schools are not subject to any such segregation now. Racial imbalance, by contrast, tends to be a product of self-selecting housing patterns. That is, black families live in black neighborhoods, and therefore attend black schools because they are closer. Such imbalance may be a product of past, intentional discrimination, but not necessarily — after all, New York’s Little Italy came into being not by law, but because immigrant Italians chose to live near other immigrant Italians.

The distinction is important here because Breyer claims the districts are in danger of resegregation. Breyer points to statistics showing increased racial imbalance over the past few decades, but of course neither district is in any danger of becoming subject to any law that mandates separation of the races.

Thomas then analyzes the primary cases cited by Breyer, and makes the important observation that Breyer is generally quoting from dissenters in those cases, or else that the cases simply do not apply. He explains in more depth than Roberts that there is no government interest in remediating the present effects of past discrimination, and notes that there is no interest in a governmental institution remediating prior discrimination it caused. To the extent the Seattle schools have historically been de facto segregated, it is because of housing patterns, and not because of statutory segregation.

Thomas next notes that Breyer claims he is applying strict scrutiny to the district plans, but observes that Breyer isn’t doing so properly. Breyer frequently claims the Court ought to defer to the judgment of the local school boards, and Thomas points out that deferring to local boards is the opposite of strict scrutiny. Had the Brown Court deferred to local judgment, it would have upheld segregation in schools. So although Breyer claims to strictly scrutinize the plans, he willingly gives the district a significant amount of latitude.

Thomas rejects Breyer’s claim that affirmative action should be reviewed under the intermediate scrutiny test rather than strict scrutiny. “Racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.” Thomas at 13. Thomas also rejects Breyer’s claim that the districts’ “integration” interest — composed of interests in remedying the effects of past segregation, an education interest, and what Breyer calls a democracy interest — is compelling, because none of the three elements withstands scrutiny, and three bad bases for a law aren’t made any better by combining them. First, there is no remedy interest because Seattle was never legally segregated. Second, the “education interest” — based on the theory that black students perform better in integrated settings — is supported only by contradicted studies. Breyer admits this fact, but claims that where the social science is contradictory, the Court should defer to local authority. Third, the “democracy interest” is simply racial balancing in disguise. Breyer claims that America is better off when the races mix, but the whole purpose of the plans was to get within specified ranges of specified percentages, which is pure racial balancing, and which has never been supported by a majority of the Court.

Regarding Breyer’s attempt to defer to the school districts, Thomas has an absolutely classic quote:

It should escape no one that behind Justice Breyer’s veil of judicial modesty hides an inflated role for the Federal Judiciary. The dissent’s approach confers on judges the power to say what sorts of discrimination are benign and which are invidious. Having made that determination (based on no objective measure that I can detect), a judge following the dissent’s approach will set the level of scrutiny to achieve the desired result. Only then must the judge defer to a democratic majority. In my view, to defer to one’s preferred result is not to defer at all.

Thomas at 20, n. 14. And indeed, the dissenters are subject to very serious attacks on the ground that the only seem to like deferring to democratically-elected law-makers when those law-makers make laws the dissenters like. Consider that in Roe v. Wade, the Court’s liberals ignored the will of the vast majority of the states in striking down abortion laws, and under far more tenuous constitutional grounds than the Equal Protection Clause. In Lawrence v. Texas, the Court rejected both precedent and deference to democratically-elected legislators simply because said leaders didn’t come to the result the liberals liked.

Now the best part. At the end of his concurrence, Thomas quotes from the de-segregationists in Brown and subsequent cases in support of a color-blind theory of the Constitution:

“My view of the Constitution is Justice Harlan’s view in Plessy: ‘Our Constitution is color-blind, and neither knows not tolerates classes among the citizens.’ … And my view was the rallying cry for the lawyers who litigated Brown… ‘That the Constitution is color blind is our dedicated belief.’ …’The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race or color alone.’

“‘We take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action.’ … ‘We have one fundamental contention which we will seek to develop in the course of this argument, and that is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens’ … ‘The state is deprived of any power to make any racial classifications in any governmental field.'”

Thomas at 26-27 and n. 20 (internal brackets omitted). One final quote from the Thomas concurrence: “Even if current social theories favor classroom racial engineering as necessary to ‘solve the problems at hand,’ the Constitution enshrines principles independent of social theories. Indeed, if our history has taught us anything, it has taguht us to beware of elites bearing social theories.” Thomas at 35 (emphasis added; internal citations omitted).

Chapter 5: Justice Kennedy’s Concurring Opinion

Kennedy’s concurrence may be summed up easily enough. He rejects Roberts’ absolutist argument that no school district may ever use race-conscious remedies, absent a history of legal segregation. To Kennedy, then, the Constitution is certainly not color-blind. But he also rejects Breyer’s claims that (1) a lower legal standard applies to affirmative action cases, and (2) these plans survive strict scrutiny in any case. But Kennedy does not describe a plan that would pass constitutional muster in his view — apparently it is still up to local districts to formulate integration plans in an attempt to find something more narrowly-tailored.

Chapter 6: Justice Stevens’ Dissent; or One Flew Over the Cuckoo’s Nest

I can’t figure out why Stevens wrote a separate dissent. He makes the same arguments made by Breyer, only not as well. But I want to comment on two points.

First, Stevens relies on a 1967 Massachusets case called School Comm’n of Boston v. Board of Ed. Roberts takes Stevens down a notch by first suggesting that Stevens is misreading the case, and then noting

The suggestion that our decision today is somehow inconsistent with our disposition of that appeal is belied by the fact that neither the lower courts, the respondent school districts, nor any of their 51 amici saw fit to even cite the case. We raise this fact not to argue that the dismissal should be afforded any stare decisis effect, but rather simply to suggest that perhaps — for the reasons noted above — the dismissal does not mean what Justice Stevens believes it does.

Roberts at 32, n. 16. That may be the most tactful way I’ve ever seen anyone say “you’re off your rocker, old man, and everyone knows you’re senile but you.”

Second, Stevens ends his brief dissent by claiming “it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” Stevens at 6. Of course, Stevens makes no attempt to explain why he thinks 1975 is such a crucial year in Constitutional Law. Originalism, I can understand — some justices want to know what the Founders intended when the wrote the Constitution so that their intent can be put into effect as much as possible. In the case of the Fourteenth Amendment, that means the post-Civil War legislators who passed that Amendment. And liberal justices usually prefer some form of a modernist argument — that the Constitution is living and breathing, and not constrained by the ideas of the Founders. But neither of those two groups generally claims that the meaning of the Constitution is to be derived from what the Supreme Court thought about it in 1975.

Chapter 7: Justice Breyer’s Dissent, or “Yes, I Admit I’m a Flaming Liberal With No Respect for the Constitution”

Breyer’s dissent is 77 pages long, including his appendices. That means I’m necessarily going to be giving the super-duper summarized version.

1. Breyer States the Facts

Justice Breyer begins by describing the history of the two school districts, showing how both were substantially segregated — in fact if not by law — for decades before the two disputed integration plans. In Kentucky, segregation was at one time compelled by statute. In Seattle, it was primarily a result of housing patterns, and <i>possibly</i> because of some under the table dealing by past school boards (this was alleged but never proven in a previous case). Breyer concludes by noting (a) that the two districts had made remarkable progress in balancing the races in their schools (sorta — he glosses over the fact that the two plans are concerned with black and white, not with “other”); but (b) national trends show the trend of integration has started to reverse itself.

2. Against the Distinction Between De Facto and De Jure Segregation

Justice Thomas’ concurrence dwelt at length on pointing out that previous Supreme Court decisions upholding (or even requiring) race-conscious remedies only applied in cases of de jure discrimination. That is, there has to be a statute, an ordinance, a written school district policy, or some other controlling law that separated the students by race before the Constitution would allow race-conscious remedies. Breyer disagreed, claiming that sometimes the difference between de facto and de jure discrimination is not so clear. But I can’t explain how he reaches this conclusion, because his argument makes no sense to me. It is a very simple question: is there a statute that says white kids go to one school and black kids to another? If not, there is no de jure discrimination. End of story.

Breyer does cite the famous case of Yick Wo v. Hopkins to argue that a law may discriminate, even though it doesn’t expressly apply to any one race. In that case, the statute was aimed at people who operate laundry services in wooden buildings — a fact that all the legislators and judges knew full well would overwhelmingly impact Asians, and no other race. Fair enough, but in Yick Wo, the plaintiffs could point to a statute they claimed was discriminatory. Which Washington or Kentucky statute does Breyer claim separated whites from blacks? He does not say.

He continues: “A court finding of de jure segregation cannot be the crucial variable.” Breyer at 20. He correctly notes that after Brown v. Board, hundreds of segregated schools voluntarily abandoned their segregation statutes and adopted race-conscious integration plans, including busing. But Thomas never claimed otherwise; Thomas’ argument was that there had to be a statute, which does not depend on a judicial finding of segregation. And it cannot be doubted that all the schools that adopted race-conscious plans had specific statutes which became invalid after Brown.

3. The Legal Standard

As I explained above, Roberts’ majority adopted a strict scrutiny approach in this case, requiring that a statute be “narrowly tailored” to a “compelling state interest.” Breyer’s next argument is that strict scrutiny should only apply to invidious (i.e. bad) discrimination, not to benign (i.e. good) discrimination. As Justice Ginsburg stated in the 2003 Michigan Law School case, “[a]ctions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated.” In other words, it’s simply not reasonable to compare hold affirmative action laws to the same standard as the Jim Crow laws.

Breyer would therefore defer to local governments and school boards on a relaxed standard of review where, basically, their motives are pure. He cites a long string of cases that he reads as allowing such a relaxed standard for school integration. As I noted above, I’m not going to read and analyze all of them for this post, which is already far too long.

After so arguing, Breyer then claims that even under a strict scrutiny standard, these plans are fine anyway, because they are still “narrowly tailored” to a “compelling state interest.” Again, I can’t really explain how he reaches this conclusion, because his argument doesn’t make any sense to me. Narrow tailoring, for example, cannot possibly describe a plan that lumps Loatians, Maoris, Guatemalans and Germans in a class called “not black,” or a plan that lumps a Kenyan, a Korean, a Panamanian and an Inuit in a class called “not white.” Both plans sweep with an exceptionally broad brush, and Breyer is willing to ignore that fact — contrary to all logic and precedent, because he likes the result. Second, Breyer argues that ending segregation is a compelling state interest, but these schools were not segregated. A federal court had expressly ruled that the Kentucky schools had eliminated the vestiges of past discrimination, and Roberts stated without contradiction that the Seattle plan affected a statistically very small number of students. So the plans weren’t really about integration at all; they were about racial balancing pure and simple, which the Grutter v. Bollinger Court specifically held is constitutionally impermissible.

Breyer attempts to get around this, again, by attempting to defer to local authority. This argument is extremely weak. It seems that Breyer always wants to defer to local authority when it gets him the results he wants, but when the locals aren’t willing to do things his way, then it’s clealy a federal matter. Of course, that’s not exactly a disciplined way to interpret the Constitution. And he never responds to Thomas’ point that strict scrutiny never involves simple deference to local authority. If it did, Brown v. Board would have come out differently. The school boards in that case argued that segregation was actually better for black students, and a deferring judge would be compelled to take their word for it.

I have to cut this short, knowing full well that I’ve not presented Breyer’s argument in the best possible light. Frankly, I’m not the person to do that anyway — I can’t read more than a paragraph or two of his opinion without immediately thinking of all the ways he’s wrong about something. But I’ve presented the outline of his arguments as fairly as I can, and I’ve argued about why I think his views can’t withstand scrutiny.

4. A Factual Quibble

Breyer argues that affirmative action is okay because it is designed to include, rather than exclude:

“The upshot is that the cases to which the plurality refers, though all applying strict scrutiny, do not treat exclusive and inclusive uses the same. Rather, they apply the strict scrutiny test in a manner that is ‘fatal in fact’ only to racial classifications that harmfully exclude; they apply the test in a manner that is not fatal in fact to racial classifications that seek to include.”

Breyer at 33. He also claims that the integration plans are not about allocating a “scarce commodity” Breyer at 35. But he is simply wrong. In Kentucky, a little child was denied two schools of his choice, because he was white and for no other reason. He was excluded from access to a government program because of the color of his skin. I find that repulsive. In Kentucky, a boy with special needs was denied access to the school of his choice, against the recommendation of his counsellors, because of the color of his skin and for no other reason. Breyer admits that in Seattle, in one year, 16% of the students were assigned to schools they did not choose simply because of their race. Breyer at 11.

The fact is that forced integration is extremely hard on kids of any color. Historically it has meant black students sitting on the bus to go hours away from home, regardless of the negative effect of mandatory busing, because “elites bearing social theories” wanted to vindicate a liberal talking point (a vindication that never came — no one has proven that black students perform better in an integrated class than in a segregated one. My theory is that’s because educational outcomes have less to do with who sits next to you in class, and more to do with what your parents have to say when you get home).

Chapter 8: Conclusion

My personal opinion is somewhere between Roberts’ view and Kennedy’s. I am not yet ready to conclude that race-based decision-making is never ever permitted for school districts, but these plans certainly don’t pass muster. Yet I lean strongly towards the proposition that forced integration is probably never tolerable. I’m nervous about laying down an absolute rule that will apply to all future factual situations, and so I might have signed on to Kennedy’s concurrence. Certainly I reject Breyer’s dissenting opinion.

I recently read a book by Justice Breyer called Active Liberty: Interpreting Our Democratic Constitution. It describes his theory of how the Constitution and federal statutes should be interpreted to maximize individual liberty. It’s an interesting little book, in part because the broad principles he describes in the first thirty-four pages get flatly contradicted in the next 100. Breyer starts by arguing that there are two kinds of liberty in a liberal government: passive liberty (the freedom to keep the government out of your affairs), and active liberty (the freedom to participate in the process of government). It is this second element that he primarily discusses.

Sharing the government’s sovereign authority with the people involves three elements: (1) “it should be possible to trace without much difficulty a line of authority for the making of governmental decisions back to the people themselves”; (2) the people themselves should participate in government”; and (3) “the people, and their representatives, must have the capacity to exercise their democratic responsibilities.” Breyer, Active Liberty at 15-16. Great principles all, but I cannot reconcile them with Breyer’s outcomes in any given case. For example, there is simply no way Breyer can credibly find any popular authority for interpreting the Equal Protection Clause to allow for discrimination by a school district against white students. If he believes that the people of America or their representatives in the 1880s intended the Fourteenth Amendment to keep white kids out of their preferred schools because of their race, he has not made any attempt to defend that belief. Second, as I have noted before, Breyer’s rule about letting people participate in government appears to be somewhat, er, selective. True enough, in this case the principle would point to deference to local school boards. But when the people want to criminalize homosexuality, Breyer says “Screw you, vast majority of America, you aren’t smart enough to make that law.” When the people want to outlaw abortion, or partial-birth abortion, Breyer says “Screw you, vast majority of America, you aren’t allowed to make that law.” When the people want the death penalty, Breyer says “I may not have the votes to strike the death penalty completely, but screw you anyway, because I’m going to throw as many hurdles in front of it as possible.” In other words, Breyer’s penchant for overruling the will of the people is simply inconsistent with his desired outcome in this particular case. Third, I agree completely with Breyer that the right to participate in government means little without the capacity to make informed decisions. But the facts here simply do not support Breyer’s conclusions. If black students perform no better in forced-integration schools, then plans based on sweeping generalizations and institutionalized racial classifications cannot justify departing from the principle that schools should not exclude students on the basis of race.

If anyone has any questions, or wants clarification of anything herein, let me know. I apologize again for droning on so long.


1. Muslihoon - July 18, 2007

Before clicking the “more” button, I hereby bestow upon you the Thesaurus Award.

After clicking it, and scrolling down to the comment box, I hereby bestow upon you the Ability To Post A Tome Online Award. Bravo! I stand (er, sit) in awe.

Now to read what was actually written…

2. sobiop - July 18, 2007

It is difficult to write about these things in short posts and still have any intact meaning. Thomas’ Bashing Breyer was funny. You didn’t do a bad job yourself.

3. skinbad - July 18, 2007

Did you mention “enervation”? I don’t think you did.

I did read Thomas’s quotes and enjoyed them thoroughly.

Also, whether there is “proof” of the benefits of integrated classrooms or not, there is conviction in graduate level education professors.

4. Sobek - July 18, 2007

Skinny, as far as the law is concerned, after this case there is a distinction. The 2003 Grutter case upheld a race-conscious admissions program at the University of Michigan Law School, and Grotz struck down a similar (but different in some important ways) program for the U.Mich. undergrad programs.

I said I wouldn’t go research all the cases relied on in Roberts’, Thomas’ and Breyer’s opinions, and I won’t, but I will point out that Breyer has the worst of the argument in relying on Grutter. That case very specifically held that (a) strict scrutiny applied to the race-based classifications, even though it was supposedly “benign,” (b) the program was constitutionally permissible because race was only one of several factors, all of which were analyzed together — accordingly, while race might help some students, no one would be denied or accepted specifically because of race, and (c) pure racial balancing was not a compelling state interest.

In Parents Concerned, the state was trying to achieve racial balance in the classrooms. Grutter specifically and clearly held you cannot do that. Breyer has to ignore that point to make his argument. This becomes especially clear when you notice that most of the times Breyer quotes precedents to support his position, he’s quoting dissenters.

5. Sobek - July 18, 2007

Sobi, for pure jurisprudential hilarity, you just can’t beat Roberts’ footnote 16.

6. Dave in Texas - July 18, 2007

100% no bullshit!

7. John - July 18, 2007

Ennui? Sounds like a listless tribe of elves from LOTR.

8. Geico Caveman - July 18, 2007

Uh, what?

9. daveintexas - July 18, 2007

I’ve got new socks on!

Actually, I just finished reading it and I enjoyed your explanation. I don’t have any questions per se, but I do remember something about an interview with Thurgood Marshall, who argued in Brown vs. Board, where he declared the objective wasn’t integration, it was equal access to resources, i.e. money fairly spent on all schools.

That topic come up anywhere in this case?

Thanks Croc-God

10. BrewFan - July 18, 2007

My theory is that’s because educational outcomes have less to do with who sits next to you in class, and more to do with what your parents have to say when you get home

You are wise beyond your years, Mr. Sobek. Thanks for taking the time to put some knowledge to us.

11. Wickedpinto - July 18, 2007

and/or deeply interested in lawyerly things

What sort of mutant do you know about that hasn’t been noticed in by the public?

“Unless you are a research post grad studying proto-plankton, or a proto-plankton enthusiast. . ”

How about,

“Unless you are a sick twisted sex fiend who doesn’t like being kicked in the balls, or just someone interested in the concept of ball kicking. . . “

12. Wickedpinto - July 18, 2007

Really, Sobek that was a wasted comma.

13. Michael - July 18, 2007

Great post, Sobek. As a young lad, I actually worked on school desegregation cases (representing suburban St. Louis school districts that were getting sucked into the St. Louis desegregation plans). The U.S. District Court in St. Louis destroyed the school system in the city by greatly exacerbating the white flight to the suburbs and parochial schools. The court basically triggered a huge evacuation of St. Louis by whites (remember, race riots were a recent memory), causing an enormous decline in the population and tax base of the city. At the time, even established St. Louis businesses started moving to suburbs like Clayton.

I remember driving to work and seeing little black kids in taxpayer-funded cabs, commuting to schools far away from their neighborhood and their friends. What folly.

All this damage was done on the most specious pretext. The invidious discrimination that supposedly was being rectified had nothing to do with Jim Crow laws or any discrimination whatsoever by school districts, but rather was based on race-specific housing patterns that had, supposedly, been exacerbated by the placement of low-income housing projects in predominantly black areas, rather than situating them smack dab in the middle of nice white neighborhoods.

[These were, by the way, some of the most infamously inhuman and crime-infested housing projects ever built in America, representing the myopic liberal fantasy of the time that if you just give people a free apartment, everything will be OK.]

Our national experiment with court-supervised mandatory integration has been an unqualified disaster. I’m glad to see that, 30 years later, it is finally coming to an end.

14. sandy burger - July 18, 2007

the myopic liberal fantasy of the time that if you just give people a free apartment, everything will be OK

I used to live in an urban San Jose neighborhood with some subsidized housing. There were single mother families and adult male ex-felons (including sex offenders) all packed together in one crappy little part of town. A recipe for success.

15. Mrs. Peel - July 20, 2007

I just now read this, Sobek (busy week). Very interesting. I heart Justice Thomas.

One time, I went out to lunch with a friend, and was yawning a lot. He asked me why I was so tired, and I said I’d been up all night reading stuff on the intertubes. “Pr0n?” he asked jokingly, and I said, embarrassed, “No, Supreme Court opinions.” He laughed a lot.

Anyway, school choice is a topic near and dear to my heart, as I benefited greatly from Magnet schools. I won’t discourse on it at length right now, but I will say that the people who argue with me and tell me I’m wrong to support the Magnet school system are inevitably rich white males whose parents could afford to live near the best schools and who have always lived in small, rich-white enclaves where there was only one school anyway. I’d be willing to bet Breyer grew up like that, too. I always tell such individuals to get back to me after they’ve tried raising their kids in a low socioeconomic area and sending them to school along with all the present and future gang members that live around them. And that’s not even getting into the reduced opportunities for advanced coursework at those schools.

Like Sobek says, it’s the parents that make the difference, and one critical role of parents is to make sure their kids get the best opportunities they can for education. In the case of those parents not able to pick up and move someplace better, that means taking advantage of Magnet schools, or whatever school choice is available in the area.

When I used to get into this argument with my ex-fiancé, it was all I could do not to punch him in the face when he would sententiously inform me that by escaping the terrible schools around me, I was in fact contributing to the problem. I wonder if he would have said the same thing to a black girl who had similarly escaped. He liked frequently restarting the argument because he had strong feelings about how awful and terrible the Magnet school system is, and had no respect for my strong feelings about not wanting to go to school with a bunch of gang members, or ever send my putative future children to such a school. Ugh, makes me mad just thinking about it.

16. lauraw - July 20, 2007


Yes, it’s far more moral to allow exceptional children to languish in subpar schools with disruptive and dangerous classmates.

What a ninny.

17. marem - July 17, 2009

! Nice site
Keep posting, and mate thanks.
there is nothing in the world I enjoy more than learning. In fact, i’d rather be learning now!

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