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.

Student Free Speech Decision: Yields a Confusing Test

Yesterday, the Court handed down its opinion in one of two blockbuster cases remaining to be decided: Morse v. Frederick. The case decides whether an Alaska school can limit student free speech regarding illegal drugs. The student, Joseph Frederick ,was suspended after displaying a sign reading "Bong Hits 4 Jesus" and he subsequently sued the school for violating his First Amendment rights.

The decision seems to chip away at a clear and applicable test for restricting First Amendment protections of freedom of speech. Precedent has usually cited safety as a primary concern for restricting freedom of speech and the Court's decision in Morse expands the definition of safety slightly too much.

CJ Roberts writes the opinion for a highly fractured majority: Scalia joins with Roberts, Alito and Kennedy write concurring opinions, and Breyer joins in the outcome of the case, but for a different reason than the other four justices. A common thread among all five justices, however, is that the school should win. Save Justice Breyer, the Court found that the student banner which was displayed at a parade reading "Bong Hits 4 Jesus" was speech that "materially and substantially disrupted the work and discipline of the school." How? By encouraging illegal drug use which has become an enormous problem among adolescents. Therefore restricting this speech will lower peer pressure to use illegal drugs such as the one in this case, marijuana.

The connection between the banner and increased drug usage is tenuous at best. The Court provides no evidence showing that the school experienced or would experienced increased numbers of students using drugs after being exposed to the sign. Moreover, the strongest stimulus of peer pressure, which would cause students to use illegal drugs, is not removed by the sign and subsequent speech being banned by the school. The ban shows disapproval, but would adolescent teens ever really listen to an adult's simple disapproval?

Stevens in his dissent gets it right. He writes:

The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, see App. 25—a viewpoint, incidentally, that Frederick has disavowed, see id., at 28. Unlike our recent decision in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, 551 U. S. (2007) (slip op., at 3), see also ante, at 3 (ALITO, J., concurring), the Court’s holding in this case strikes at "the heart of the First Amendment" because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U. S. 397, 414 (1989).

In addition, he cites Tinker again, placing emphasis upon the fact that "Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance." CJ Roberts draws too many lines and has to make too many assumptions in showing the connection between Frederick's sign and an increase in student drug use. There is no "significant fear of disruption." At least none in the opinion was shown or advocated by the school itself.

One other danger of "viewpoint discrimination," as Justice Stevens calls it, would be that moral judgments either on the morality of gay marriage, stem cell research, or abortion would become at least conceivably regulated under the school's policy of anything that "materially or substantially would disrupt the work or discipline of the school." Resolving teenage pregnancy through abortion may very well be an increasing problem for America, but does the school have a right to limit speech which may advocate for a pro-choice position? The test the Court lays out in Morse would appear to affirm a school's decision to limit that kind of speech.

Justice Breyer also points out an interesting situation:

If, for example, Frederick’s banner had read"LEGALIZE BONG HiTS," he might be thought to receive protection from the majority’s rule, which goes to speech "encouraging illegal drug use." Ante, at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.

Legal principles must treat like instances alike. Those principles do not permit treating "drug use" separately without a satisfying explanation of why drug use is sui generis. To say that illegal drug use is harmful to students, while surely true, does not itself constitute a satisfying explanation because there are many such harms. During a real war, one less metaphorical than the war on drugs, the Court declined an opportunity to draw narrow subject-matter-based lines. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (holding students cannot be compelled to recite the Pledge of Allegiance during World War II).

Indeed, the Court does not consider the chilling effects that their decision creates on possibly educative speech which will broaden student's horizons and force them to make educated and informed choices (whether on the use of illegal drugs or support for an unpopular war)--something which would substantially aid the work and discipline of the school, rather than disrupt.

The Court authors a problematic decision in Morse. It will likely see this case revisited once more so that they can fashion a more coherent approach to free speech in schools.

The LSAT, Logic Games, & Brendlin

One component on the standardized test used for admission to law schools around the country, is called logic games. Logic games comprise a range of different situations in which a student taking the test must know how to arrange and coordinate multiple sets of elements at a time.

For example, say that a college counselor needs to meet with five students: Betty, Carol, Dan, Ellen, and Fin over the five day week. The test taker must coordinate the schedule for the college counselor. Simple right? However, there may be several restrictions to the counselor's meeting schedule such as the fact that she cannot see any girls on Monday or Wednesday, Carol must see the counselor before Dan, and Carol must see the counselor anytime in between Betty and Ellen. The Law School Admissions Test (LSAT) thus requires students to be able to separate important issues and determine what really matters in resolving a problem.

Similarly in the recent case involving passenger's rights to bring a constitutional challenge against a traffic stop search (Brendlin v. California), a similar element of being able to separate issues and deal with multiple elements at a time is at hand. The case is interesting in that the methamphetamines seized on Brendlin's person implicate him in illegal drug use. Why should a person who most probably committed a crime be allowed to bring a challenge to his detention and suppress this evidence? It is most likely for this reason why the California Supreme Court ruled against Brendlin since letting a person who violated the law go free is not "equal justice under law." Yet, the question which the justices should have addressed separates this issue of guilt and innocence, requiring them to ascertain whether or not Brendlin or a person similarly situated has the right to bring a constitutional challenge to the seizure. Whether or not the person is guilty or innocent based on this evidence seized during the traffic stop is an entirely separate issue.

The question posed to the justices was: "Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop." How else could a person sitting in the vehicle not be detained? It would be ludicrous to say otherwise. Come on, justices use those good skills that the LSAT reinforced.

It appears that perhaps the California Supreme Court justices need a little logic games review for the next term.

Increasing Tension in Lower Court Nominations

It is well known among scholars of the law that most of the power to decide cases lies with lower court judges rather than courts of appeal or courts of review. The rationale is that higher courts, while they have the power of reviewing lower court decisions, do not have the time to review all of the lower court decisions and therefore they usually stand as the law.

However, it appears that there is always a frenzy over appointing judges at higher levels in the court system. Alito and Roberts are examples on the USSC. On lower courts, we saw in the summer of 2005 the contentious battles over the nomination of Priscilla Owens and Janice Rogers Brown for federal courts. Owens was finally confirmed for her seat on a federal appellate court and Brown now serves on the United States Court of Appeals for the District of Columbia Circuit.

Recently, a similar, but less contentious battle over the Governor John Corzine's nominee for chief justice of the New Jersey Supreme Court has brought to light this battle over lower court nominees. Corzine nominated Stuart Rabner, former attorney general for the state, but some minorities in the New Jersey Senate criticized Corzine for Rabner's nomination citing the fact that not as much consideration was given to minority candidates.

Rabner was confirmed by a vote of 36-1 indicating that although there was concern over his nomination, this did not pose much of a threat to his nomination. It appears, therefore that either credentials were more important in state legislators decision to confirm Rabner or that his political ideology was in line with that of state legislators despite concerns over his race.