The Supreme Court Confronts the New Racists

by Hilaire de Sauveterre (Dec. 2006)

Our place of birth exercises a peculiar influence on us. Native sons are formed by the land and society into which they are born; immigrant children must always be haunted by the sense of a home not known and a life not lead. Even Philip Larkin, who loathed his quotidian Coventry childhood, could not forget everything he did and didn’t experience in that place where his “childhood was unspent.”

I am no different. Though raised and educated in several countries, my first and thus purest memories are of a small frontier city in the Pacific Northwest. When I arrived the city was still a sleepy outpost of Empire only dimly aware of its future as a post-modernist utopia. But when change came, it came with a fury. Poured concrete and glass towers quickly replaced stolid granite, brick, and timber structures built to withstand the changeable elements and the constant reality of isolation. And into these new buildings strode a new man, one not bound not to the old physical community but to an abstract community of ideas; a man for whom history was as irrelevant as the rotting frames of the abandoned logging mills.

The New Man of the West no longer depended on himself and his neighbors for his livelihood, but more often than not on subsidies flowing from a distant, Keynesian State liberated from fusty notions of prudence and thrift. In a generation, the urban Northwest had embraced the comfortable compromise of progressive socialism. That the region has not suffered the enervating effects of that stagnant philosophy is a tribute to the persistence of the frontier spirit of adventure and entrepreneurship. But economics is not everything. Material prosperity and fortuity of location obscure a festering crisis in the Northwest. Being an intellectual affliction, the ravages of progressivism are mostly hidden from sight. But when the cultural contagion does bubble forth, like a suppurating furuncle on the body politic, the extent of its advancement is shocking.

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So it was with a familiar dismay that I learned of the Seattle Public School Board’s latest public relations debacle. Until recently, the Seattle Public Schools website featured a page entitled “Race and Equity,” which instructed readers on the many definitions of racism. To what end, I cannot say, but the definitions were sufficiently controversial to draw opprobrium even in a politically correct Lotus Land. One singled out by a critical opinion piece in the Seattle Post Intelligencer explained that “Cultural Racism” involves:

Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as “other”, different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.

And, of course, racism is a one way street – white to non-white. Racism being helpfully defined by the School Board as “[t]he systematic subordination of members of targeted racial groups who have relatively little social power in the United States (Blacks, Latino/as, Native Americans, and Asians), by the members of the agent racial group who have relatively more social power (Whites).” Confused? Would it help if I reminded you that Seattle is the city that erected a statute of Lenin after the fall of Communism?

To put the Seattle School District’s definition of Cultural Racism in plain terms: if you think skin-colored stockings are beige; if you like to plan ahead or consider the future effects of your actions today; if you eschew collectivist ideologies in favor of individual rights; or if you believe that students should be taught a standard English grammar, vocabulary, you are ipso facto racist. Congratulations, your hood is in the mail.

Such arch-silliness always tempts me to cheek. I am tempted to ask whether the opposite of “having a future time orientation” is “dwelling in the pot-smoke fug of the 1960s” or “nursing century-old grievances”? Or whether Marxism is an acceptable “collective ideology” for the Seattle School District? My confusion on this point is, I think, legitimate, for whether or not Marx was a “great writer” he was, after all, white. And is it too impertinent to wonder how Seattle teachers grade spelling tests or compositions without “defining one form of English as standard”?

Apparently I am not the only person bemused by the Seattle School Board’s racial fatwa, because, on June 1, it removed its curious (if amusing) definitions and replaced them with the following message:

In response to the numerous concerns voiced regarding definitions posted on the Equity & Race website, we have decided to revise our website in a way that will hopefully provide more context to readers around the work that Seattle Public Schools is doing to address institutional racism. The intended purpose of our work in the area of race and social justice is to bring communities together through open dialogue and honest reflection around what is meant by racism and the impact is has on our society and more specifically, our students. Our intention is not to put up additional barriers or develop an “us against them” mindset, nor is it to continue to hold onto unsuccessful concepts such as a melting pot or colorblind mentality. It is our hope that we can explore the work of leading scholars in the areas of race and social justice issues to help us understand the dynamics and realities of how racism permeate throughout our society and use their knowledge to help us create meaningful change. This difficult work is vital to the success of our students and families. Thank you for sharing your concerns.

Warm regards,

Caprice D. Hollins, Psy.D.
Director of Equity & Race Relations

Seattle Public Schools

Apart from the disturbing thought that the author of such ghastly prose (“provide more context to readers around the work that Seattle Public Schools is doing”) is responsible for the education of impressionable children, the new message is at least as bad as the old definitions. Are we comfortable with the fact that the Seattle Public School District has unilaterally abandoned the idea of “a melting pot or [a] colorblind mentality” as “unsuccessful”? Were Seattle taxpayers consulted about this volte-face over America’s national ambition? One senses that the Seattle Public School Board wouldn’t care what they thought anyway.

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Normally none of this parochial absurdity would matter to anyone beyond the bounds of the Seattle School District. In this case, however, the Seattle School Board’s racial views have assumed national import because of a related policy now being challenged in the United States Supreme Court.

This December 4, the Supreme Court will hear oral arguments in two companion cases challenging the allocation of students to public schools according to race. Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education not only offer new Chief Justice John Roberts and new Justice Samuel Alito their first opportunities to rule on the constitutionality of affirmative action, but present the Court as a whole with a chance to clarify several decades of confused and contradictory racial jurisprudence.

Back in 2003, the Supreme Court decided two cases involving the use of race in university admissions. In Gratz v. Bollinger, the Court struck down a University of Michigan undergraduate admissions program in which race was considered such an important factor that it all but guaranteed the admission of minority applicants. However, in Grutter v. Bollinger, decided the same day as Gratz, the Court upheld the University of Michigan Law School’s admissions program, which considered race as one of several factors in helping to ensure a diverse incoming class. The reasons for the different outcomes in these two cases are still a matter of scholarly debate, but the most important difference seems to have been the relative weight placed on race in each program.

Now the Court must decide whether two public school programs that also allocate student places by race are more like the permissible Grutter admissions program or the verboten Gratz program. The first program comes to the Court courtesy of our friends at the Seattle Public School Board. Under Seattle’s “open choice” admissions program, parents of students entering the ninth grade may choose which of the city’s ten public high schools they wish their children to attend. If a school is oversubscribed, the School District uses a series of tiebreakers to allocate the limited places. The first tiebreaker is whether a student already has a sibling at the school. Next, if the oversubscribed school’s racial composition deviates more than 15 percent from the overall racial composition of the school district (which is 40 percent white and 60 percent non-white – the Seattle School District does not distinguish among “non-white” students), places are allocated to maintain racial balance. The third tiebreaker is geographic proximity with any remaining ties broken by lottery.

The challenged program in Meredith differs slightly. First, the program operates from kindergarten to the twelfth grade. Second, the “managed choice” plan operated by the Jefferson County School District is designed to ensure that no school in the district has a racial composition that is less than 15, or more than 50, percent black (overall, approximately 33 percent of the school district is black). Finally, in curious contrast to the Seattle program, Jefferson County classifies students as black or non-black without distinguishing among “non-black” students for allocation purposes.

Both programs were upheld by their respective Circuit Courts of Appeal, though Parents Involved followed a tortuous path through the Ninth Circuit involving multiple reversals before an en banc panel of the court finally bestowed its imprimatur.

The petitioners in each case are parents of students denied their first choice of schools on account of their race. They argue that the programs violate the Fourteenth Amendment’s guarantee of “equal protection” under the laws for all citizens regardless of race. As the Supreme Court has interpreted the Equal Protection Clause, any distinction drawn by the government on the basis of race must further a compelling government interest and must do so through the narrowest possible use of race that can achieve that interest. In legal shorthand, in order to prevail in the Supreme Court, the School Districts must demonstrate that the use of race serves a “compelling interest” and is “narrowly tailored.”

The School Districts defend their racially-based admissions policies as furthering the compelling interests of exposing students to a diverse student body, reducing the de facto segregation produced by geographically-based schooling, and achieving equal opportunities for all students. Of these, the Court will likely focus on the first: the educational benefits vel non of a diverse learning environment. On this point, the School Districts contend that a diverse student body promotes “tolerance” and “understanding” of other races and prepares students to work in a multicultural society by exposing students to diverse viewpoints.

These benefits are broadly the same as those championed by the University of Michigan Law School – and accepted by the Supreme Court as a compelling state interest – in Grutter. The School Districts argue further that they are even more compelling at the elementary and secondary school level than at law school because younger students are more impressionable and incompletely socialized. Moreover, as the Ninth Circuit observed anent the many students that do not proceed to post-secondary education, “their public high school education experience will be their sole opportunity to reap the benefits of a diverse learning environment.”

These benefits, however, are far from compelling. The evidence that students perform better in racially integrated schools is, at best, underwhelming. Thomas Sowell is fond of pointing out that in 1899 a segregated black school in Washington, D.C. outperformed two of the three academic white high schools in the city and scored at or above the national average in standardized tests into the 1940s despite significantly inferior resources. Indeed, under the logic of the Seattle and Jefferson County School Districts, one must marvel at the pedagogic success of Socrates and Aristotle in the homogenous groves of Academe. The viability of segregated education is not, of course, an argument for the coercive segregation of public schools – nothing could be more inimical to the assimilative spirit that has allowed generations of immigrants to flourish in this country – but it does undercut the compelling interest proffered by the Seattle and Jefferson County School Districts.

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Ironically – and I use that word carefully – the heirs to yesterday’s segregationists are those who, like the Seattle School District, reject the goal of an American “melting pot.” So wedded are they to the idea of racial essentialism – the pernicious ideology that equates pigmentation with culture – that they believe an education in our common Western civilization necessarily excludes non-white students. The universality of Shakespeare, Bach, or Michelangelo – so patently obvious to their admirers around the world – is invisible to these progressive panjandrums. Such is their racial myopia that they would rather a black student read a third-rate black poet like Maya Angelou than a first-rate white poet like Yeats.

While there are exceptional non-white writers, artists, and musicians in the Western tradition, the simple truth is that there are overwhelmingly more who are white. That fact should not have any bearing on the high-school curriculum, nor should it influence the tale the good teacher tells his students. Any curriculum that strays from the best in our Western tradition is incomplete, and a teacher who suggests – either overtly or through his selection of texts – that members of any race cannot share fully in that tradition perpetrates a grievous fraud on his students.

Regrettably, not even appeals to the common weal can stay the neo-segregationists at the Seattle School District from the swift advancement of their agenda. And what an internally contradictory and ultimately fruitless agenda it is! One that proclaims that viewpoints are racially determined and presses the case for racial diversity while lumping together Hispanics, Chinese, Koreans, Indians, East Indians, Arabs, and West Africans as fungible “non-Whites.” One that denies that there can be objective standards in language or culture but systematically denigrates one set of standards (traditional, western, white, middle-class) in favor of any expression of culture popular in a non-white community. Instead of the equal application of one standard regardless of race, the new racists have made standards the slave of race.

That the same minority students who are coddled by this solipsistic pedagogy will one day graduate into a world that does value common standards and objective achievement does not daunt the new racists. To the contrary, it offers an even greater challenge: the extirpation of the world of objective standards and knowledge beyond the classroom through the indoctrination of all students in the dogma of cultural relativism. By teaching that racial expression (circularly defined as any expression by members of favored races) is more important than intellectual distinction, they are training their students to inhabit a post-Western society.

This is the real impetus behind the drive to integrate students of different races. By exposing students to a diversity of viewpoints and teaching that none is more or less valuable than any other, they are consciously undermining the dominant Western culture. The upshot of this treasonous agenda is that the Seattle and Jefferson County School Boards must demand physical integration in the service of intellectual segregation. An American education: you can’t beat it!

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What will the Supreme Court have to say about all this? Probably not much. Its decisions will likely focus on two much narrower questions: (1) Are the admissions programs engaged in impermissible racial balancing; and (2) Could similar results have been achieved without relying on racial classifications?

On the first point, the Court will again confront the legacy of University of California Regents v. Bakke, the 1978 case in which Justice Lewis Powell’s influential opinion declared that racial quotas were per se violations of the Equal Protection Clause. In a pertinent passage, Justice Powell wrote that:

[i]f [the University’s] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.

Although Grutter approved the use of race as a consideration in admissions by the University of Michigan Law School, it did so with a nod to Justice Powell’s Bakke opinion. The Grutter majority explained that, while race can be considered as one of a multitude of “pluses” in the ranking of applicants in a competitive admissions process, it cannot be a determinative factor or operate as a “quota” because “racial balancing” is “patently unconstitutional.”

Grutter showed that even the Court’s defenders of official racial classification – Justices Stevens, Breyer, Ginsberg, and Souter – are circumspect in their approval. Unlike the Seattle School Board, they are not prepared to repudiate Justice Powell’s admonition that:

[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.

The question is whether the Grutter majority will stand by its definition of “quota” as “a fixed number or percentage which must be attained, or which cannot be exceeded” in the face of plans that prescribe a strict mandatory deviation of no greater than 15% (Seattle) or 18% (Jefferson County) from the racial composition of respective school districts. By the Grutter majority’s own definition, the Seattle and Jefferson County plans are quotas, and therefore unconstitutional. Expect those justices to retreat from their former position and mount a rearguard defense of quotas under yet another name and definition.

What you should not expect is much discussion of what the Constitution says about the State’s ability to classify persons by race. This is because no permissible quota or degree of acceptable racial preference can be adduced from the Equal Protection Clause. The Constitution speaks of the equal treatment of all persons; it does not engage in the parsing of statistical deviations from racial norms in a community. As Judge Bea, dissenting from the Ninth Circuit’s decision in Parents Involved, reminded the majority, “[t]here is no de minimis exception to the Equal Protection Clause.” Under this view, the melting pot is not merely a social good but, where the State is concerned, a constitutional imperative. This view, however, is unlikely to command a majority on the current Court.

If a majority of the Court is loath to touch the tar baby of quotas and racial balancing, it may still reject the School District programs as not being narrowly tailored to the stated goal of promoting viewpoint diversity. In his sharp dissent from the Ninth Circuit opinion, Judge Bea faulted the Seattle School District for failing to consider non-racial alternatives to the challenged admissions plan. Judge Bea quoted one School Board member as being so wedded to the race-based allocation of places that he refused even to read a proposed program based on non-racial factors, averring that he would “rather play with [his] bass lunker fishing game.” Expect at least some justices to pick up on this remark and to fault the School Districts for not considering plans based on less constitutionally suspect criteria such as socioeconomic status and neighborhood.

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Ultimately, the Supreme Court’s decisions will not determine the future of racial discrimination in America. Indeed, the most depressing aspect of these cases is unrelated to their outcomes: whatever the Court says about the two programs under review, the administrators who implemented them will remain in charge. If their avowedly racist weltanschauung is affirmed, they will be emboldened to expand it to school sports teams (don’t laugh: it happened in South Africa), club memberships, and individual classroom assignments. Streaming by ability or achievement will be subordinated to rigid egalitarianism; government neutrality will yield to “substantive” equality, which requires constant government intervention to handicap some groups and promote others in vain pursuit of a neutered equality of each with all. The only certainty is that academic standards will continue to plummet (which can hardly be expected to concern a School Board that doesn’t believe they exist in the first place).

Even if the programs are struck down, nothing will change. The Supreme Court’s invalidation of the University of Michigan’s racially-determined admissions program has not affected the practices of American universities, which continue to give race considerable prominence in their admissions processes. If these particular programs are invalidated, the administrators will go back to the drawing board and develop another plan that, while superficially compliant with the Court’s decision, will be equally race-conscious and produce the same racial balancing.

The hard truth is that the Supreme Court is impotent to enforce its decisions. Whatever its rulings in Parents Involved or Meredith, nothing will change until the voters of Seattle and Jefferson County assert their political will and throw the current School Board members out. Sadly, it will probably take another decade of failing schools and diminishing American productivity to spark the necessary overhaul of the American school system. The political will simply does not exist at this time to break the unions currently blocking the private provision of public education, merit pay, and increased school hours; to jettison the current free-to-be-you-and-me consciousness raising agenda in favor of a focus on the fundamentals of reading, writing, mathematics, history, geography, sciences, art, music, and sport; to increase streaming and setting according to ability; to reintroduce discipline; and to replace a one-size-fits-all secondary education with one that channels students into academic or vocational streams according to proficiency and preference.

It is a daunting challenge, but the alternative is cultural sclerosis. The Supreme Court is likely to reject the un-American vision of the Seattle and Jefferson County School Boards, but all the laws and judgments in the world will not avail if we do not demand change ourselves.