Some Musings on Affirmative Action

As I'm sure you've heard, the Supreme Court announced its decision in Parents Involved in Community Schools v. Seattle School District striking down the district's affirmative action plan. The plan sought to achieve a roughly 60-40 balance of "non-white" students to white students, to match the surrounding Seattle demographics. In other words, they wanted to avoid any of the schools in the district from becoming "the black school" or "the white school." Fair enough. I've already commented on my thoughts regarding affirmative action more broadly, and as I implied in that post, I agree with the Court's decision. I think this kind of blatant use of racial demographics is unconstitutional. A student should not be placed in a school solely because of his or her race. Indeed, Brown v. Board of Education stated rather clearly that the Equal Protection clause "prevents states from according differential treatment to American children on the basis of their color or race." At least this is the reasoning the Court uses. I'm not sure how reasonable it is to apply Brown while striking down an affirmative action plan.

After all, Brown was meant to end segregation. Affirmative action plans were one way (perhaps the only way) to achieve the goals of Brown. So, to suggest that an integration plan that would prevent de facto segregation is contrary to Brown seems rather foolish. I do not think the Justices who decided Brown would have thought that the sort of racial distribution going on in this plan is unconstitutional. But I do.

Sort of.

The interesting part of this case is Justice Kennedy's concurring opinion. He agreed with the Court that this specific plan was unconstitutional, but he was not willing to go as far as the others who seemed to suggest that race could never be used in these sorts of plans. Kennedy suggests that race can be a contributing factor in how school districts derive these plans. This is, of course, terribly vague, and the Court has used this terribly vague reasoning before. In the Michigan University cases a few years ago, Justice O'Connor argued that race can be a contributing factor for admissions offices to consider among other relevant factors. However, strict quotas are unconstitutional.

And strict "balancing acts" are unconstitutional. So, what then can school districts do to avoid de facto segregation? First of all, these plans must be "narrowly tailored" to achieve their stated ends. In this case, the Court argues, the distinction between "white" and "non-white" is not even conducive to the goals of the school district. The district requires that the racial balance fall within 10% of the 60-40 divide. So, the Court points out that a school with 50% white students and 50% Asian-American students would be "balanced" while a school with 20% white students, 30% Asian-American students, 25% African-American students, and 25% Latino students would be "unbalanced," even though the latter would be far more diverse. Thus, the "white"-"non-white" distinction cannot be shown to be an effective means of achieving the district's goals. Of course, the question then is how can districts narrowly tailor their plans? Justice Kennedy provides some assistance:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools;drawing attendance zones with general recognition of thedemographics of neighborhoods; allocating resources forspecial programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

So, this sort of understanding allows for race to be a factor, but not the deciding factor. And in addition, it does not aribitrarily split children into racial groups. As Justice Kennedy points out, the Court's majority opinion seems to understand the Equal Protection clause and Brown as not allowing districts to attempt to do away with de facto segregation. In my previous post, I suggested that I agreed with this argument, but after some deep thought (indeed, it took me two days to figure out how I wanted to construct this post), it seems unbelievably foolish. To suggest that if inequality occurs naturally we can't adress it seems contrary to the goals of the Equal Protection clause and blatantly contrary to the goals of Brown. "Separate but equal" is not equal, even if that separation is "natural."

So, where do I stand? Ultimately, I agree with the Court that this plan is unconstitutional, but I recognize that it is necessary at times for race to be a factor. And there are ways of adressing the issue of de facto racial separation without explicitly splitting up the races. So, I find myself wading in the murky waters of Kennedy and O'Connor's intellectual waffling. But, you know what? Sometimes waffling is the only way to avoid unreasonable extremes. So, I'm okay with it.