Juridics: USA: Reorientation of Supreme Court on racial ratios in schools

USA Today has published an opinion piece by Laura Vanderkam, "Message to high court: 'Get out'" (Mar20,2k7). Vanderkam brings together some descriptive accounts of American school systems that have built up traditions of complying with past Supreme Court decisions, thus opening the way for racial ratios to govern the composition of the student bodies of its schools (and likewise presumably the teaching staffs). The quota-compliance traditions are held in place by democratic votes, most notably in the key instance of the Louisville, Kentucky area's public schools. There, school boards are regularly elected over the years, which support maintaining the 15%-50% quota for black students in every school in the system, so that racial integration is engineered for all schools under that board's jurisdiction (and, incidentally, there are, as a result, no longer any all-black student bodies in Louisville).

Vanderkam claims it works. It works in part because of a broader but more distinctly educational-philosophical position of the school system that structures the studernt learning process around a division-of-labour arrangement among the several schools. Each school offers a different set of course and curriculum options, making each distinct on a basis other than neiborhood location or the specific racial demographic configuration of that neibourhood. The whole arrangement is built around the concept of "magnet schools." Thus, each school has a reason for bringing into its student body (on the basis of each student's chosen interests) numerous students not from its immediate neibourhood, yet of course all from within the one system loaded with distinctive magnet schools.

But this more recently has created an apparent reorientation among jurists, and apparently also among the Justices of the Supreme Court of the USA (SCOTUS, as the court is nicknamed). "Judicial restraint has been a guiding conservative principle. ‘Activist judges,’ after all, are rooted in the liberal camp. But an upcoming Supreme Court decision on school desegregation might turn conservative jurisprudence on its head." Vanderkam suggests the possiblity that "conservative jurisprudence" may become activist in order to counter the democratic tradition of imposing the 15%-50% black student ratio in all schools (of course, I'm citing the Louisville case as a kind of model here; a related case from the Seattle, Wasington schools will have other particulars regarding ratios). That means, of course, no school can be all black; nor any all white (leaving aside for this discussion the very probable presence in the system and its schools of students of yet other races -- Asian, American Indian ...).

Bussing of students simply to achieve "racial balance," including the determination of quotas and ratios, has always had its problems. And continues to do so. Not least of all because it makes all-black schools illegal, as well as all-white schools. But Louisville has obviated the severity of the race-balancing bussing problem in that a superiour and more strictly curricular educational motive has become the priority for the assignment of students to schools outside their immediate neighbourhoods. This means there's a clearly educational motive related to each student's choice of learning goals (the magnet-school concept), and not just the single educational objective of teaching-by-doing inter-racial socialization. The latter easily becomes contestable conceptually because many people (of both the races focussed upon here) disown the value of socialiZation (specifically inter-racial socialization) as a valid objective of schooling as such, especially when prescribed by government schools--tho independent schools necessarily would be free to determine the educational value of inter-racial socialization, or for that matter of inter-gender socialization). Outr+t segregationism would remain illegal in regard to races, but not in regard to genders.

My view is that because Louisville has an explicitly educational motive thru its magnet-schools concept, the racial ratios, democratically continued by the school board's electorate from vote to vote over the years, become far less problematic in constitutional terms (even for a conservative jurisprudence of judicial restraint). The Louisville schools make it possible for black students to opt for their own choice/s among the wide range of curricula available in the school-system as a whole, thus helping to fulfill the chief objective of a school system predicated upon the obviously educational value of curricular diversity, choice, widened horizons--all thru magnet schools.

However, this may not be the case in regard to the Seattle school system. Whether or not "race-mixing" or "inter-racial balancing" or racial quotas/ratios or bussing for the purpose of inter-racial socialization obtains in both Seattle and Louisville, I think SCOTUS should be free, on the prime juridical principle of sphere sovereignty, to approve the Louisville Educational Philosophy (in regard to the points at issue), while at the same time possibly outlawing whatever prevails under the Seattle arrangement (I'm speaking only hypothetically here, assuming that Seattle's schools are not sufficiently organized around the magnet concept with all the implications for diversity of curricula from school to school that flows from it).

Were Seattle relying solely on inter-racial socialization as an educational objective sufficient in itself to justify bussing from neibourhood to neighborhood on the basis of racial quotas/ratios, then that conceivably non-educational motive or, let us say, that policy questionable in regard to its educationality as a prime task of schools, would suffer by comparison with the Louisville Educational Philosophy. Moreover, my hypothetical Seattle approach would certainly be unconstitutional in making an all-black school illegal under the Seattle boar (it would fail also in making an all-white school illegal). Of course, I am not arguing for schools that disqualify the admission of any student based on her or his race. Location of residence may, however, be a legitmate reason for non-admission to a given school, and result in a defacto all black or white or Asian or Native American school--or nearly so, in each case.

A sensitivity to the juridical principle of sphere sovereignty would enable a SCOTUS Justice or an Appeals Court Judge to distinguish among factors like a location-rule and a racial-quota rule, on the one hand, and an explicitly and hardcore educational-philosophical concept like a diverse-curricula objective such as that of a concept of a citywide sytem of magnet schools. At the same time, if a school system does not develop a prevailing magnet system, then the role of location-rules become more apropos, and the role of racial quotas/ratios become less apropos. One thing further, I don't see why in a magnet-school system there could not be room for a school specailly structured in its curriclum to feature black studies, Africa studies, African languages, and to celebrate Black cultural holidays, if the interest is present for such a specialized magnet school within the city's population. Rural school systems may have a smaller capacity in achieving a wide diversity of magnet schools reachable by students day by day.

LOUISVILLE — Here in Jefferson County, Ky., thousands of students recently learned which magnet schools they'll attend next year. With different schools offering everything from Chinese to pre-dentistry, the application process always gets kids excited.


Some of Jefferson County's schools take mostly neighborhood kids. Some look at grades. Some also look at the student's race — a fact that could have ramifications far beyond Louisville. After a long history of court-ordered desegregation, the elected school board has decided, voluntarily, that most schools' enrollments should be 15%-50% black.

Most students get their first choice. Some don't. A few years ago, a mom named Crystal Meredith wanted to transfer her son to a different school. Because this would have left his first school with too few white students, the district denied the request. After much back and forth, Meredith's son wound up in his desired school. The problem seemed to go away. Nevertheless, Meredith has sued the schools for considering race at all, and last summer, the U.S. Supreme Court decided to hear the case (bundled with a Seattle one). A ruling is expected this spring, leaving a question mark over this year's enrollment process.

Shifting principles?

After oral arguments, many observers believe that the court's new conservative majority is poised to overturn Louisville's solution to the tough issues of race and education. That wouldn't be a victory for democracy or local control — things that judges favoring "judicial restraint" cherish. Though conservatives have fought for years to fill the Supreme Court with restrained judges, the Meredith case could undermine the philosophy in one blow.

Like many cities, Louisville greeted Brown v. Board of Education, the 1954 Supreme Court ruling that declared segregation unconstitutional, with fear. Unlike many cities, though, Louisville tried to comply.

Superintendent Omer Carmichael had been drawing up plans and by fall 1956, 55 of the city's 75 schools had mixed student bodies. This happened peacefully, which led Carmichael to write a book, The Louisville Story, about this "triumph — of man's ability to solve some of his most vexing problems with reason and goodwill."

The problem, however, did not stay solved. A generous transfer policy and segregated neighborhoods meant that by 1957, only 5,630 of Louisville's 12,010 black students attended schools with any white children. White flight to the county schools increased tensions.

In 1975, Kentucky ordered the merger of the Louisville schools with Jefferson County's schools, and a judge ordered a desegregation plan. Students would be bussed based on the first letters of their last names.

It was a harsh solution, and that fall, Louisville boiled. Eventually, the protests ended. But white families kept leaving. So in the '80s and '90s, the school board moved to a system of magnet schools and managed choice to lure people back. DuPont Manual High School, for instance, decided to offer dozens of Advanced Placement classes.

In 2000, a judge ruled that the district could be released from previous court orders. But the school board, reading community sentiment that diversity had become a good thing, decided to keep most schools 15%-50% black. They read right. School board members who support the 15%-50% target keep getting re-elected.

In other words, after a long struggle, Louisville has a school system that parents vote for at the polls and by enrolling their kids.

Usually, conservatives think that local, democratic solutions beat court-ordered ones. In Planned Parenthood v. Casey, a 1992 Supreme Court abortion case, Justice Antonin Scalia penned a dissent praising this judicial restraint.

'We have no right'

"By foreclosing all democratic outlets for the deep passions this issue arouses...the Court merely prolongs and intensifies the anguish," he wrote. "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

In December 2005, when Justice Sandra Day O'Connor was still on the Supreme Court, the justices gave their support for democratic solutions by declining to hear a case from Lynn, Mass., like Meredith's. With the addition of President Bush's new justices, though, the court changed course. Scalia scoffed in oral arguments at statistics showing local support. "Nobody is going to say 'give me a lily-white school,' " he said.

In other words, when it comes to race, judicial restraint goes out the window.

Some conservatives offer explanations. Abortion isn't mentioned in the Constitution; race is. But schools aren't mentioned at all. Louisville allows appeals; no one is denied due process. The constitutional reasoning for forbidding the use of race in enrollment is unclear. That's why local elections, where "deep passions" can be released, minimize the anguish.

But many conservatives, politically, don't like racial balancing programs. Because they sometimes lose, politically, on this issue, they've taken to the courts — precisely what proponents of judicial restraint complain that liberals do. Some conservative voices put principle over politics.

In the Seattle case that accompanied the Louisville one, Reagan-appointee Alex Kozinski of the 9th Circuit Court of Appeals noted that "there is much to be said for returning primacy on matters of educational policy to local officials." School systems have already endured much when it comes to liberal court meddling; conservatives have fought too long to rein in activist courts to abandon that philosophy for one political win.

"This community is trying to do the right thing," says Carol Haddad, a school board member in Louisville. "That ought to say a lot to the Supreme Court."

Namely, as Scalia once said, that there is virtue in choosing to "get out."

It's a knotty set of problems, but I think the sphere sovereignty of a school for the purpose of educating the young should prevail as the over-ruling principle. Louisville seems to have done something wonderful and unique, in an imperfect world, where a priority has to be achieved as to what are the driving and guiding factors that colour the entire institution. It all depends on how a citywide school system answers the question What is a school?