Perhaps Not All Affirmative Action Is Created Equal

I primarily take issue with Professor Armor's statement that "We have racially imbalanced neighborhoods and cities based on where people choose to live. What's wrong with racially imbalanced schools?" For poor, and even middle-class families on a fixed income, there are limits to the choices that they can make. -Angela

June 11, 2006

Ideas & Trends
Perhaps Not All Affirmative Action Is Created Equal
By JEFFREY ROSEN --NEW YORK TIMES

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 Seattleand Louisvillewhen 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 Seattleand Louisvillecases, 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 Seattleplan. 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 Massachusettsschool
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 Seattleand Louisvillecases, 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 LawSchool. 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 Seattlecase, 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."

http://www.nytimes.com/2006/06/11/weekinreview/11rosen.html?_r=1&oref=slogin