Schools, race, "diversity," and "compelling interest," revisited
I’ve had an interesting exchange with Karl and (yes) Shine in the comment thread to yesterday’s post on the 5-4 SCOTUS ruling that would, on the surface at least, restrict the use of “race” (as a substantive deliminator) in K-12 school settings — an exchange I wish to highlight, because I think it touches on many of the issues that arise from Justice Kennedy’s (to my mind, at least) troubling concurrence.
As I noted in my original post, the problem in Kennedy’s concurrence is that it leaves the door open to circumvention on the issue of when and how race, in the guise of “diversity,” is a “compelling interest” — even though it is careful to restrict the use of race to those situations wherein other remedies are not readily available.
In the university setting, this position — affirmed in Grutter — has proven a cosmetic Band-Aid: admissions officers simply pretend that they are using “race” ONLY as one criterion among many for deciding on candidate selection, and are therefore able to go about their business of promoting “diversity” just as they had before — only now, with the requirement that they are paying lipservice to the Court’s injunction that race can only be considered alongside other criteria.
Yesterday’s ruling — by way of Justice Kennedy’s concurrence — looks to extend Grutter, it seems to me, to K-12; but the problem for those who would hope to get around this ruling in the same way universities have gotten around the earlier strict scrutiny clause, is that K-12 schools don’t use admission selection committees, and in fact their enrollment distribution, racially and ethnically-speaking, is based on an entirely different paradigm (generally, location).
Before going into my back and forth with Karl and shine, however, I’d like to quote from Bob Driscoll, who, as SCOTUSblog notes, “represented Amicii Curiae David Armour, Abigail Thernstrom, and Stephan Thernstrom and served as a Deputy Assistant Attorney General in the Civil Rights Division of the United States Department of Justice from 2001-2003”. He also happens to echo some of my sentiments — while expressing others I find troubling — in the following commentary examining the “practical impact” of the ruling:
[…] the suggestion by Justice Kennedy that race may be used as “one factor” of many is difficult to comprehend in the K-12 public school context where assignment is not competitively-based. It will be interesting to see what districts and courts do in response to the Kennedy concurrence, but I do not think that this situation is analgous to Gratz and Grutter, after which admissions officers merely began to chant “one factor” while continuing to make essentially race-based decisions in the same manner that they had been. School districts will have a very hard time evading this decision if they disagree with it. While those who are skeptical of governmental race-based decision-making may not view the result in these cases as philosophically pure due to the Kennedy concurrence, it is nevertheless a practical victory in my view. I do not see many plans with maximum or minimum racial percentages surviving a well-crafted challenge in light of these opinions.
This seems to me about right: though I’m sure, as I said yesterday, clever advocacy groups will come up with legal challenges that press at the weak seems leftover from Kennedy’s concurrence, the likelihood of success is minimized by the injunction, in the majorities ruling, that race be considered only as a last resort.
Still, it is easy to see that, under a different court — and as the dissent made abundantly clear — the latitude left open by Kennedy’s opinion, narrow though it may be, could eventually be widened by a series of rulings meant specifically to rehabilitate the use of race as a “compelling government interest” as defined by liberal Justices who believe the majority essentially reversed the spirit of Brown.
And, frankly, though Kennedy may have struck upon a less obvious political dodge than O’Connor before him, he has nevertheless struck on one, all while maintaining that he is ruling narrowly on the cases before him (and argument that Karl, playing devil’s advocate, will also float — but one I find unpersuasive).
So while I agree with Driscoll that the ruling has the practical effect (at least, in the short term) of making racialized policy far more difficult to realize on the K-12 level — because it nevertheless opens up the prospects for a rehabilitation of racialized policy by arguing that “diversity” is, in fact, a compelling interest, and that the Constitution itself cannot “regrettably” support a “universal” color-blindness (as the plurality expressly noted in can and should), I think Driscoll is far too sanguine about the ruling’s “practical effects.”
Second, although the Breyer dissent mouths the words “strict scrutiny,” it is clear that the dissenting Justices would apply some lesser level of scrutiny to “inclusive” governmental decision-making based on race if given the opportunity. Indeed, in discussing the social science research on the purported educational benefits of diversity, the Breyer dissent acknowledges a split in academic authority on the topic, yet then goes on to defer to school boards’ choice of what research to give credit to — I’m not sure what that means, but its doesn’t seem like strict scrutiny to me if a “compelling” justification can be articulated by choosing favorable social science research from a body of inconsistent studies (one can imagine the fun that could be had in selecting social science studies in the criminal justice field to justify race-based decsion making by the government). What is unclear is where Kennedy stands on how one defines a “compelling” interest. While he clearly finds “diversity” a compelling interest, he provides little insight as to whether he agrees with the rationale of the dissent with respect to deference to school boards or simply assumes that “diversity” in education is a compelling interest post-Grutter without reaching the question of what type of evidence must be presented to establish a “compelling” interest.
And therein lies the nut: Breyer, for the dissenters, clearly indicates that one notion of strict scrutiny for what comes to count as “compelling,” with respect to racially-motived political policy, is really nothing more than a way to choose which social science the Court comes to find fits its own ideas of how society should be racially apportioned, once a challenge to yesterday’s ruling presents them with the option of accepting the rationale.
Meaning that a change in the ideological makeup of the court will lead, almost certainly, to a complete reinterpretation of yesterday’s ruling — thanks specifically to Kennedy’s refusal to reject “diversity” as a compelling interest (a decision he based on nothing but his own personal opinions, so far as I can tell), and thanks, too, to his refusal to allow that Constitution requires a “color-blind” application of the law.
On this last point, I wrote yesterday:
I remain confused as to [the rationale behind Justice Kennedy’s] thinking here, unless he is combining Ã¢â‚¬Å“race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by raceÃ¢â‚¬Â with Ã¢â‚¬Å“[a]ssigning to each student a personal designation according to a crude system of individual racial classificationsÃ¢â‚¬Â Ã¢â‚¬â€ which, while Ã¢â‚¬Å“distinct,Ã¢â‚¬Â is still nevertheless a question of Ã¢â‚¬Å“race,Ã¢â‚¬Â and forc[es] a semantic rejection [in his mind] of the would-be Ã¢â‚¬Å“universal principleÃ¢â‚¬Â of color blindness), and given that Kennedy asserts that the project of Ã¢â‚¬Å“diversityÃ¢â‚¬Â is itself a compelling governmental interest.
And it was to that point that Karl responded with an interesting argument on behalf of Kennedy’s thinking:
[…] on the very narrow point that Ã¢â‚¬Å“it is regrettable to say, it cannot be a universal constitutional principle,Ã¢â‚¬Â [Justic Kennedy] may only be saying that there are (unfortunately) some cases where govÃ¢â‚¬â„¢t can or must take race into account. For example, if a race riot breaks out in a prison, the warden likely can segregate prisoners by race. More likely, Kennedy is suggesting that govÃ¢â‚¬â„¢t can require race-conscious remedies where there is a proven record of racial discrimination. Such is far different from the Ã¢â‚¬Å“diversityÃ¢â‚¬Â rationale embraced in the Michigan cases, about which Kennedy is apparently being ambiguous.
And whatever doctrinal beefs I might have with Kennedy, I would add this. One conservative approach to judging is to focus narrowly on the case before you, not saying more than you need to say to decide the case, and trying to avoid broad (and often activist) policy pronouncements. OTOH, the Supremes generally take cases to render opinions that will have that broader impact. And even conservatives now expect this. To that extent, (ostensibly) conservative Supreme Court Justices always have to deal with a certain tension in their duties.
Karl’s comment addressed several points of tension I’d highlighted as (to my way of thinking) problematic with the decision, and placed them in a reasonable, tangible light.
Still, I remain unconvinced, for reasons I then spelled out:
n your example, Karl, the question is, are you segregating the population BY race BECAUSE of the racial nature of the riot Ã¢â‚¬â€ which would simply be reacting to what IS, and doing what needs to be done to end it REGARDLESS of whether or not the fight had been between blacks and whites, say, or some rival gangs? Because then race would be incidental from the perspective of the corrections institutioninmatesÃ¢â‚¬â„¢ views about race and racial animus are responsible for the actions the prison has to take, even while those actions are Ã¢â‚¬Å“color blindÃ¢â‚¬Â in the sense that the prison would have separated whatever warring factions happen to exist Ã¢â‚¬â€ even preemptively, if they got wind of a problem beforehand Ã¢â‚¬â€ regardless of why the tensions between them exist, and regardless of the races involved.
That would not, then, it seems to me, be running afoul of a color blind Constitution Ã¢â‚¬â€ and would fit into the category Ã¢â‚¬Å“race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race,Ã¢â‚¬Â wherein race is no different than, say, gang color or tattoo.
I also agree with you about narrowly interpreting the case. But it seems to me that Roberts said it well. The best way to end racial discrimination is to end racial discrimination. And I think the Constitution clearly calls for that. So even to decide the case narrowly is to apply that principle. Kennedy, on the other hand, unnecessarily broadened the case by appealing, in his ruling, to potential future cases where he could conceive of reasons why a school might Ã¢â‚¬Å“needÃ¢â‚¬Â to use race in a way that would help them reach the Ã¢â‚¬Å“compelling governmental interestÃ¢â‚¬Â of diversity.
There, it seems to me, is the overshoot.
Karl’s follow-up comment is here, but it essentially finds common ground with my concerns.
But Karl’s wasn’t the only concern raised over my analysis. Shine, not surprisingly, chose to advance the “liberal” side, and in so doing, made some points that are certainly worth addressing. He begins by quoting from Karl
Ã¢â‚¬Å“For example, if a race riot breaks out in a prison, the warden likely can segregate prisoners by race. More likely, Kennedy is suggesting that govÃ¢â‚¬â„¢t can require race-conscious remedies where there is a proven record of racial discrimination. Such is far different from the Ã¢â‚¬Å“diversityÃ¢â‚¬Â rationale embraced in the Michigan cases, about which Kennedy is apparently being ambiguous.Ã¢â‚¬Â
— before adding,
There is also the very extreme view of the likes of stephen colbert, which is that if you donÃ¢â‚¬â„¢t see race, you donÃ¢â‚¬â„¢t see racism. Even in Jena, Louisiana.
Snark aside, the point is one that I’ve long had to grapple with in my discussions over race in general, and over the politics and policies of race as a social strategy in particular.
Assuming, for the sake of argument, that it is our goal, as a country and a society, to minimize the impact of racism and marginalize those who are, in fact, racist, what is the best way to go about accomplishing that goal?
Too often, those who criticize people like me who find race-based affirmative action, for example, problematic, do so by suggesting that my desire to end such (failed) social projects is that I am hoping to use bourgeois concepts like “merit” and “fairness” to provide advantages to those who, the argument goes, are at a social advantage based on the color of their skin.
But this argument seems entirely reductive, and in fact, it has the effect of lumping together the very disparate situations of individual “representatives” of particular “races” into a kind of artificial hierarchy — in the process, rejecting individualism for a kind of easy group-based pigeonholing that presumes to suggest that we can, simply by looking at the color of one’s skin, determine how close (to use a race car analogy, for my mouthbreathing redneck readers) that person is to the poll position.
In short, criticism of the critics of race-based policy initiatives oftentimes refuse to acknowledge that the goals are ostensibly the same, whereas the difference arises when the discussion turns to the best way to combat the problem. That is, strategy is the true point of contention — and yet those who are hoping to maintain the post-Bakke status quo will seldom acknoweldge that simple fact, preferring instead to “bully” across their own strategy initiatives by suggesting that those who disagree are closet racists.
And that is precisely the tack shine takes. In response to his initial assertion (by way of Steven Colbert) that “if you donÃ¢â‚¬â„¢t see race, you donÃ¢â‚¬â„¢t see racism,” I wrote:
ThatÃ¢â‚¬â„¢s actually not an unfair point. The opposite, however Ã¢â‚¬â€ and the position IÃ¢â‚¬â„¢ve been arguing since grad school Ã¢â‚¬â€ is that so long as you see race, youÃ¢â‚¬â„¢ll continue to find racism, and that the proximate cause for most race consciousness these days is continued race consciousness, in the form of government set asides, identity politics, Ã¢â‚¬Å“celebrating the differences,Ã¢â‚¬Â and multicultural dogma.
It is a fair argument, I think, to assert that racism will always exist Ã¢â‚¬â€ but it will be far less pernicious and far less extensive when the culture at large isnÃ¢â‚¬â„¢t divided by race on any kind of (coerced/ Ã¢â‚¬Å“remedialÃ¢â‚¬Â) institutional level.
The libertarian side of me finds no problems with self-segregation in theory; in practice, I have more of a problem with forced Ã¢â‚¬Å“diversityÃ¢â‚¬Â Ã¢â‚¬â€ particularly where diversity is defined so superficially.
Again, this was a response that dealt with strategy. To the assertion that if we don’t see race, we won’t see racism, I responded that, in my view, it is the foregrounding of race that in fact gives rise to the desire (and social necessity, given that legislation is contingent upon a perceived need) to locate and highlight “racism,” however dubious that it.
Further, it is the political and legal foregrounding of race that has the further effect of, not surprisingly, keeping “race” foregrounded as a social issue.
Which is why, from a strategy standpoint, I find it appropriate to demystify race (by pointing out the bad science behind it); and then to advocate for social policy that refuses to consider race in any way that can be construed as either ameliorative or coercive (both of which “remedies” to “racial division” have been attempted and have been found wanting, if you can believe the hard data accumulated by researchers like the Thernstroms) — the effect being to eventually minimize the impact of racial politics, and take away the political clout of those who traffic in racial grievance, the practical effect of which is that they must constantly find instances of racial tension and stoke them.
In response, shine writes:
You need to at least see race to find racism. And no matter how much one closes oneÃ¢â‚¬â„¢s eye to race, thereÃ¢â‚¬â„¢s always the possibility that another wont. So the racism will still be there. Even while some of us think they are enlightened by putting their heads in the sand.
That last bit, of course, was a veiled suggestion that critics of a particular strategy are refusing to acknowledge that race is an issue — that we would rather ignore the problem than help solve it. And the subtext of such an argument is that we don’t care about racial disparity — that we are, in fact, racially insensitive, if not downright hostile to racial justice.
Which is, of course, utter self-serving nonsense. Shine would have us believe that, because race consciousness exists, government policy (which is largely responsible for keeping race consciousness in the social forefront, ironically enough) must reflect this race consciousness — a circular argument disguised as a justification for the status quo that has landed us where we are, and which, if permitted, will keep us here perpetually.
And it is my view that in order to change the culture of race, you must first change the culture of thinking about race — something that can’t be accomplished if we continue to argue that our beliefs on race must always reflect the general social beliefs on race. Or, to put it more forcefully, it is rather silly to argue that bad policy based on a faulty strategy must necessarily continue because, as a result of that faulty strategy, that bad policy has been reinforced, in turn has giving rise to an entrenched culture of misguided thinking that we must now respect simply for its entrenchedness.
Besides, as Karl notes in a follow-up comment:
[..] if you want to spot exactly where shineÃ¢â‚¬â„¢s argument collapses, it is here:
My point is that its not a bad thing that the constitution isnÃ¢â‚¬â„¢t race blind, because society isnt. And from a constitutional perspective, it should try to address how contentious race is in society. Because there are certain uses of race that we should not tolerate, that we should find to be infringements on a constitutional level.
The Fourteenth Amendment, however, provides for the equal protection of the laws. ShineÃ¢â‚¬â„¢s wish that it be otherwise is just that Ã¢â‚¬â€ a wish. And thatÃ¢â‚¬â„¢s why race might be taken into account by a court in a particular case or controversy where what Ã¢â‚¬Å“ISÃ¢â‚¬Â might require it as an appropriate remedy, but the 14th Amendment is certainly not license for public or private bodies to engage in racial discrimination themselves because they believe others are doing the same. The only real caveat is that Congress may Ã¢â‚¬Å“enforceÃ¢â‚¬Â the 14th Amendment by Ã¢â‚¬Å“appropriate legislationÃ¢â‚¬Â Ã¢â‚¬â€ a clause sufficiently problematic that Congress chose to base the 1964 Civil Rights Act on the Commerce Clause instead.
Clearly, yesterday’s ruling goes a long way toward narrowing, in the short term, some instances of racial politics.
But Kennedy’s concurrence — insofar as it has holding and it rejected the plurality’s insistence that the Constitution be color-blind, and that racial diversity is not a compelling government interest (at least, not based on any scientific consensus I’m aware of) — leaves the door open for future challenges (which will be largely semantic and potentially broadly interpreted), and so actually strayed from representing the kind of narrow, case-specific ruling upon which a conservative Justice like Kennedy prides himself.