Affirmative Action for LGBTQ?

On the Docket will be hosting a forum at Georgetown University's undergraduate campus addressing the issue of whether or not the LGBTQ community should have preference in college and higher education admissions. Both sides of the issue will be represented at the forum.

Participants in the forum will hear from the LGBTQ Resources Director, Bill McCoy, a Senior Director of Admissions, Jaime Briseno, and Director of the Institute for Diversity, Equality, and Affirmative Action, Marjorie Powell.

The purpose of the forum is to understand the campus climate at Georgetown and perceptions of the LGBTQ community after two hate crimes occurred on campus against this segment of the student population.

Clarence Thomas on Race

Much has been made of Justice Thomas' recent release of his autobiography "My Grandfather's Son." Critics and liberals alike of the Justice criticize him for selling out to the Republican Party and also being a hypocrite--striking down many of the policies which helped him get to the very seat that he sits in. He responds to these criticisms in this short segment from 60 Minutes after the release of his autobiography.

Socio-economic Factors Fail in Creating a "Diverse" Student Body

A NY Times article reports that high schools are having trouble creating diverse student bodies using socioeconomic factors rather than race. The article reports when schools in San Francisco began considering other factors besides race to create a diverse student body, these plans did not work. While the premise of race correlating with income is fertile ground for creating a diverse student body in theory, in practice the experience of using such criteria has proved quite difficult.


What does this mean for the use of race in creating a diverse student body? It at the very least does not entirely foreclose the option of utilizing factors that favor certain races in designing a racially diverse student body. Justice Kennedy's opinion in the recent Seattle schools case therefore is very prescient in emphasizing the fact that in some cases race may actually be a useful means of selecting and rejecting certain applicants for high school admission. (Admissions to undergraduate and graduate education remain an entirely separate issue addressed in two other affirmative action cases).

The findings by the San Francisco schools also raise interesting questions about what exactly diversity means. What precisely constitutes a "diverse" student body? What's wrong with having an entirely black student body? For example, a high school student body could be composed entirely of black students. However, if one digs deeper, and gets to know each individual student, we find that some are children of wealthy doctors, lawyers or business men. Some come from housing projects nearby. Others are immigrants who recently came from Sudan as refugees and are learning English as a second language. Some of these students aspire to be artists, NBA basketball players, president, or the U.N. Secretary General. Would not someone say that this is a diverse group of students who could learn from each other's different experiences, talents, and backgrounds?

There are real and substantive differences between each individual student in the scenario that could provide educational benefits. Are the educational benefits even greater when these students can visually see differences in skin color? An interesting question that courts may have to confront one day (perhaps rather soon) in the future.

Race in Schools: A Move Beyond Integration to Diversity

Many journalists have categorized the recent decision regarding race-based assignments in high schools as a win for conservatives. After all the decision, Parents Involved in Community Schools v. Seattle School District No. 1, seems to turn back the clock on progress that has been made regarding race and race relations in the United States.

Yet summing up the decision in so many words is not that simple. The 185 page decision is quite nuanced. The conservative plurality authored by CJ Roberts, and joined by Scalia, Thomas, Alito and Kennedy is quite careful in not striking down any race based means of achieving the high school's end goal of creating a diverse student body, but only goes so far as to say that purely race based means of doing so are unconstitutional. The opinion does not overturn any past precedent, but merely serves to clarify it. Kennedy's concurrence serves to emphasize this distinction.

He says:

"This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated societythat ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand."

Both liberals and conservatives should agree that this crude classification of children solely on the basis of race is unconstitutional. It goes against the very meaning of the Equal Protection Clause. It would also go against the very individualized method of review that the Court in Grutter approved. The court made it explicit in the two University of Michigan affirmative action cases that the reason for approving one system of review and striking down another was the more individualized method of review where race was not equated with diversity, but one of many factors that could contribute to the meaning of diversity. Justice Kennedy should be applauded for upholding and making special note of this precedent, even though he did not join in the majority's opinion in Grutter.

The decision conforms to what much of Bakke, Grutter, and Gratz have told us over the past 30 years. The days of pure race based integration measures for simply remedying for the effects of past discrimination are over. We have moved beyond integration for the sole purposes of integration. Integration serves a new goal now. That new goal is diversity. The goal, it appears, serves a dual purpose: 1) increasing education and tolerance among members of society and 2) remedying for the effects of past discrimination.

While remedying for the effects of past discrimination may not be necessary anymore at some point (as O'Connor prophetically said in Grutter that affirmative action measures would be expected to end in 25 years), it seems that as long as there is a society that values education and tolerance, race will be an ever present factor in discussions about diversity and society will never truly be colorblind.

More on the Seattle Decision

An editorial today from the NY Times by Adam Cohen appears to agree with On the Docket's prediction about the USSC striking down the integrationist-tie breaker.

Yet, the editorial appears to contribute the decision mostly to the changing ideology of the Court rather than constitutional jurisprudence and precedent. Cohen rather harshly blames Justice Thomas for the predicted outcome of the Seattle decision.

It is hard to say, whether or not Cohen is right, but the evidence from the oral argument transcripts appear to point in the other direction. Liberals on the Court such as Justice Breyer and Justice Souter appear to be the ones whom Cohen should blame. Both Souter and Breyer upheld the affirmative action program seen in the University of Michigan Law School case in 2003, but it appears that they have a different take on the integration plan by Seattle. They do so not because they are not liberal, but rather because the motivations and rationale behind the Seattle integration plan are different. Applicants are chosen solely on the basis of race, rather than an individualized selection process which also takes into account academic merit of the applicants. Take a look at what was said during oral arguments:

JUSTICE SOUTER: Let me help you out by taking you back to my question. One of the characteristics of the affirmative action cases was the displacement of some other otherwise generally acknowledged relevant criterion such as ability as shown in test scores, grade point averages, things like that; and that was a characteristic of those cases.

It is not a characteristic of this case, as I understand it.

***

JUSTICE BREYER: But I think that the point that Justice Souter is trying to make, as I understand it, is of course there are similarities to Gratz, they can choose, but there's a big difference. The similarity in Grutter, or the difference in Grutter and Gratz is that you had to prod a school that was supposed to be better than others, that the members of that school, the faculty and the administration tried to make it
better than others. It was an elite merit selection academy. And if you put the black person in, the white person can't get the benefit of that.

Here we have no merit selection system. Merit is not an issue. The object of the people who run this place is not to create a school better than others, it is to equalize the schools. That's in principle and in practice, if you look at the numbers, you see that the six schools that were at the top, their position would shift radically from year to year, preferences was about equal among them. They have the same curriculum, they have similar faculties, and I don't think anyone can say either in theory or in practice, that one of these schools happened to be like that prize of University of Michigan, a merit selection system. That, I think, was a major difference that he was getting at, why is this not the same kind of thing? That was at issue in Grutter and Gratz. Now what is your response to that?

Cohen makes a weighty claim against Justice Thomas. Thomas, himself, as Cohen points out does, not say very much during the oral arguments, so it is hard to tell what is going on his his mind about the intergrationist tie breaker at this point. Given previous rulings, though, he will most likely vote against it. Yet, it appears that the Seattle decision will have more than just Thomas advocating against it.

Affirmative Action & Freedom of Expression

Two blockbuster cases await decision as the onset of June approaches and the 2006 term of the Supreme Court comes to a close.

The first case deals with the ability of public schools in the state of Washington to use race as a factor for assigning seats in high school assignments. Certain public schools in the city of Seattle are oversubscribed by public high school students and as such high schools use certain criteria to determine which students to accept. Race is the last factor among three others considered in the selection process.

Justices took great pains during oral argument, however, to make sure that they communicated the fact that the "integration tie breaker" used by the Seattle school districts is different from the affirmative action plan seen in the Grutter University of Michigan Law School case from 2003.

Because of this distancing from previous precedent upholding the use of race, On the Docket believes that USSC will strike down the integration tie breaker.

The second case deals with freedom of expression. Namely, the phrase, "Bong Hits 4 Jesus," which was displayed during a public school parade in Anchorage, Alaska. During oral argument justices were quite concerned with the ability of school officials to ban this type of free speech (one which did not harm others) as too limiting a regulation in violation of the First Amendment. The justices seemed to imply that if they ruled in favor of the school, school administrators would then be free to regulate views of school teachers, books, and other learning materials that school adminstrators may perhaps not agree with.

It is therefore our prediction that the Justices will rule in favor of the students.