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In Gratz v. Bollinger and Grutter v. Bollinger, the University of Michigan is asking the Supreme Court to take a radical step — to hold that ethnic diversity is a compelling government interest that may be furthered by treating individuals differently based solely on their race. If the justices agree, we could see eternal racial-balancing schemes, ever changing to advance whatever ethnic mix is considered desirable at any given moment, and to promote racial groups and subgroups previously overlooked not because they were victims of de jure discrimination but simply because they are “underrepresented.” It is difficult to imagine an outcome more at odds with previous Supreme Court decisions, which consistently limit use of racial classifications to remedying identifiable discrimination. It is equally difficult to imagine that the posited diversity programs would be necessary to protect any constitutional right. These concerns are not mere speculation. In Ho v. San Francisco Unified School District, plaintiffs spent four years to end just such a plan. NO ADMITTANCE In 1994, the parents of five-year-old Brian Ho applied to the San Francisco Unified School District for his placement in a kindergarten near their home. Patrick Wong, then 14 years old, applied for admission to Lowell High School, the best public high school in San Francisco. Both boys were rejected solely because of their Chinese ancestry. Eleven years before, the San Francisco school district had entered into a court-approved consent decree to settle claims that the school district had discriminated against African-Americans and Latinos in favor of whites. The heart of the 1983 decree was a system of race-based student assignments. Each child was classified into one of nine arbitrarily defined ethnic groups: African-American, American Indian, Chinese, Filipino, Korean, Japanese, Latino, Other White (i.e., whites who were not Latino), and Other Non-White (i.e., everyone else). Each school had to enroll students from at least four ethnic groups. At an “alternative” school (analogous to a magnet school), no group could constitute more than 40 percent of the student body. At all other schools, the cap was 45 percent. From the outset, the consent decree appeared to be a racial diversity program, not a narrowly tailored remedy to discrimination. Among other things, the decree imposed race-based assignments on children from groups who were neither the victims nor the beneficiaries of the alleged discrimination. Whatever the appropriateness of the consent decree in 1983, however, by 1994 it had clearly become a perpetual diversity-enforcement scheme. Any student who had suffered discrimination as of 1983 had either left the system or would soon do so. And children of Chinese descent, who had since become the largest ethnic group in the student population, were being barred from admission to approximately one-third of the district’s schools, which were “capped out” for Chinese. Lowell High School exemplified the problem. Lowell admits students on the basis of their index scores, derived from middle-school grades and performance on a standardized test. To limit Chinese to 40 percent of the student body, Lowell required Chinese applicants to score higher than students of any other ethnicity to gain admission. Patrick Wong, for instance, had a score that would have resulted in his admission had he been of any ethnicity other than Chinese. Concerned members of the local Chinese-American community approached school district authorities and the San Francisco chapter of the NAACP (which had brought the case that resulted in the consent decree) about easing the racial caps. They were told that modifications would not be considered. The political process having failed them, Chinese-American parents turned to the courts. In 1994, Brian Ho, Patrick Wong, and their parents filed the class action Ho v. San Francisco Unified School District. On behalf of a class of schoolchildren of Chinese descent, the plaintiffs alleged that the city’s assignment system violated their equal protection rights under the 14th Amendment. In 1997, the plaintiffs moved for summary judgment, which was denied. The U.S. Court of Appeals for the 9th Circuit heard their interlocutory appeal. Up to then, the defendants had been insisting that it was the plaintiffs’ burden to show that the 1983 consent decree was improper. In 1998, the 9th Circuit rejected that argument, stressing that the defendants had the burden of proving that the race-based assignment system was narrowly tailored to address existing, identifiable vestiges of past discrimination. On remand, the District Court pointedly observed that the defendants’ ability to adduce such evidence was very much in doubt. On Feb. 16, 1999, with the parties assembled in the courtroom for the first day of trial, a settlement was reached. The school district agreed to abandon its race-based assignments, and the plaintiffs agreed that the consent decree could otherwise remain in place for several more years, to enable the school district to continue receiving certain supplemental funding from the state. As a result of Ho, the decree is now scheduled to terminate on Dec. 31, 2005. BEEN THERE, SUFFERED THAT The irony is that the burden of San Francisco’s race-based scheme, purportedly designed to rectify discrimination, fell heaviest on a group that had long suffered severe discrimination in the West — the Chinese. They were driven from gold mining plots by whites jealous of their success; massacred while the authorities turned a blind eye; and hired for the most dangerous jobs in building the Transcontinental Railroad but denied equal wages, and then hounded out of the vicinity when the project was done. In California, the Chinese were also subject to various forms of state-mandated discrimination. In some instances, they successfully sought protection from federal courts. For instance, in Ho Ah Kow v. Nunan, a district court in 1879 invalidated San Francisco’s “Queue Ordinance” on equal protection grounds. The following year, in In re Ah Chong, the court found unconstitutional an act forbidding Chinese from fishing in California waters. Also in 1880, in In re Tiburcio Parrott, the court declared unconstitutional a provision of California’s 1879 constitution that forbade corporations and municipalities from hiring Chinese. The U.S. Supreme Court weighed in with Yick Wo v. Hopkins (1886), ruling that Chinese were “persons” under the 14th Amendment and could not be singled out for unequal burden under a San Francisco laundry licensing ordinance. In In re Lee Sing (1890), the District Court found unconstitutional the Bingham Ordinance, which mandated residential segregation of Chinese. And in United States v. Wong Kim Ark (1898), the Supreme Court ruled that a Chinese-American boy, born in San Francisco, could not be barred from returning to the city after a trip abroad. State discrimination against Chinese extended to the public schools. In Tape v. Hurley (1885), a state court had to order San Francisco public schools to admit a Chinese-American girl who had been denied entry on the ground that, as stated by the state superintendent of public instruction, the schools were not open to “Mongolian children.” In response, the state legislature authorized separate schools to which Chinese-American children were restricted by law until well into the 20th century. The federal courts upheld these segregated schools. The District Court in Wong Him v. Callahan (1902) denied a child of Chinese descent admission to his neighborhood school on the ground that the “Chinese” school in Chinatown was separate but equal under Plessy v. Ferguson (1896). And the Supreme Court, in Gong Lum v. Rice (1927), ruled that a Chinese-American girl in Mississippi could be denied admission to a “white” school because she was a member of the “yellow” race. Times supposedly change, and yet 30 years after Brown v. Board of Education (1954), San Francisco school authorities were back to an official policy of admitting and rejecting students of Chinese descent based on their race. This time, the ostensible purpose was to mix people of different ethnicities rather than to keep them separate. But the procedure was the same: As in the past, if students were of the right race, they were admitted to a given school; if they were of the wrong race, they were excluded. Until the Ho challenge, this policy seemed destined to continue indefinitely. FOREVER AND EVER This, then, is what will likely follow a ruling for the University of Michigan in Gratz and Grutter: the adoption of racial-balancing schemes from kindergarten to graduate and professional school, continuing in perpetuity, constantly being fine-tuned to achieve whatever ethnic mix is considered ideal at the time by bureaucrats and pedagogical theory. Under cover of a federal consent decree, such a program was official policy in San Francisco public schools for 16 years. The end of the system in 1999 came too late for Patrick Wong, as he had graduated from high school by then. Earlier this month, however, Brian Ho was admitted to Lowell High School. Had diversity already been held a compelling government interest, Brian might have been rejected for his race once again. Should the Supreme Court now reach that result in Gratz and Grutter, state-imposed racial classifications and admissions will become a defining feature at all levels of education. And the pursuit of the Ho case will have been for naught. Anthony K. Lee is an attorney in San Francisco. Together with Daniel C. Girard and Gordon M. Fauth Jr. of San Francisco’s Girard Gibbs & De Bartolomeo, he filed an amicus brief on behalf of the Asian American Legal Foundation in support of the plaintiffs in Gratz and Grutter. Girard, Fauth, and Lee, together with Hastings College of the Law professor David Levine, represent the plaintiff class in the Ho case.

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