Update: I listened to a bit of the second argument, respecting a Kentucky school district, after writing this. That one involved a district with some past de jure segregation, but it seems the plan used was somewhat more race based, so appears to be something of a wash. The district used integration, not diversity per se, as its compelling interesting. Seems related to me. Kennedy admitting that district had benign motives, but others might not, seemed helpful. Scalia seemed less willing even to admit that much.
NYT has it good respecting the two major school race-based plan cases that the Supremes heard today -- they have everyone's favorite conservative with an accent in the Ninth Circuit on its side. Now, it might seem unlikely to matter -- why else does the Supreme Court take a case, especially one that leans left, from the West Coast except to overturn it? OTOH, they always have to throw a few cases in to trick people into the not catching on with their plan. Oh, and the Times can call the Justice Department hypocritical, since now they are in support of "judicial activism" and against local discretion in school boards. The editors must be quite happy.
Snark aside, the two plans (two circuits) at stake here that deal with de facto segregation do not appear to be unconstitutional, if not totally free from concern. When Justice Kennedy worries about taking notice of the race of school children -- when other possibilities toward the end might be possible (though Justice Breyer suggested experience suggested otherwise in Seattle) -- alarm bells to go off. But, think about it ... what exactly does this really violate, constitutional-wise? Equal protection is at stake. The rule is evenhanded, social diversity in public school is fundamental (a prime reason I support the system, actually, and one that benefits not just minorities like white males), and Seattle at least (the orals I listened to in part) has a self-classification system as to race.
["'This strikes at the heart of the Equal Protection Clause, which commands that government treat people as individuals, not simply as members of a racial class,' Mr. Korrell said, alluding to a section of the 14th Amendment to the Constitution." They are -- as individuals in a public school where diversity is a benefit. The rub is determining if a classification is invidious. It is rather unclear such a test is violated here.]
And, was not the same thing upheld in the college affirmative action cases? Justice Kennedy dissented there, of course, and Justice O'Connor was replaced. FWIW, Alito sounded wary ... btw, yes, sometimes "activism" and/or overruling democratically based institutions is/are acceptable -- there are constitutional norms, though the stereotypes behind the terms warrant a bit of scorn in cases like this. Still, there did not need to a compelling remedial interest dealing with state mandated discrimination. Diversity was acceptable as an interest, even if many find it bad policy. It is not too surprising, however, that there is a continual split on how to best to obtain the end of equal protection of the laws. And, if anything, isn't it better to promote diversity during K-12? Why not?
Anyway, in reality, "de facto" (in effect) discrimination is a bit of a cheat. Why are separate school districts (like in NYC) likely to be split by race? Mere choice? Or, a complicated history of discrimination for which governments in some fashion had a part? At any rate, the justices seemed all to agree (at least a clear majority) that the state can have race conscious motives in school decisions. The problem is the means. The liberals are a bit clueless if they wonder why it matters what particular means are used -- the Constitution is all about limiting discretion while carrying out benign ends. Still, if we can recognize race, is it crossing the constitutional line when we do so in individuals?
There are various problems with a method that picks and chooses school children by race in a society that is supposed to be about the individual. Clearly, the plans suggest, race does matter when you are placed in your school. Why not religion, nationality, politics? You see the slippery slope, though at the end of the day, race will still matter. So, the concern has a feeling of a fool's errand. And, would the parents here be so much less concerned if their school policy was racially determined in other ways, such as use of magnet schools or the like that would in some fashion not be a matter of simple merit or locale? These plans are admittedly a bit more personal, even though it is but one factor of many, a sort of tie-breaker. But, no, I do not think many would.
[See here. One concern raised is travel time. As someone who repeatedly was bused or took buses for non-racial reasons, including the determination that my neighborhood school was of poor educational merit, I find this simplistic. You think travel hurts? How about racial divisiveness? No "solution" is cost-free and the implication by supposed smart people -- oh so dismissive of plans like this one -- underline certain blindspots and/or biases.]
So, I'm with the NYT here ... I don't know if I would support the individual plans as a matter of policy, but I seriously doubt that they are unconstitutional. Heck, some blunt affirmative action plans very well might be unconstitutional, but probably not this one. But, the deciding vote is not mine. And, if it goes the other way, watch out for the "see! now shut-up about judicial activism!" talk to ratchet up a notch. Oh, and the note that bare constitutional text or original intent is not the end of things -- the principles underlining them can be as important.
All of this doesn't surprise me, of course, but cases like this tends to bring out simplistic name calling.