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Soon, probably this summer, the U.S. Supreme Court will rule in Parents Involved in Community Schools v. Seattle School Dist. No. 1, a case involving the use of race in public school admissions. The decision will reveal the Roberts Court’s views on the government’s power to draw racial lines. But it will do more. The main, perhaps the only, hope for the Seattle School District’s admissions plan to survive is if the court finds that it fits into the “diversity” exception crafted four years ago in Grutter v. Bollinger, 539 U.S. 306. The Roberts Court may simply decide that the plan doesn’t fit into the Grutter diversity exception. But it might also decide to limit or even eliminate the exception. Its decision could shed light not only on the court’s attitude toward the specific issue of racial selectivity, but also on its general attitude toward precedent and independence. The Seattle School District allows “open admissions” to its high schools. Any student can apply to attend any high school in the city. In 1997, the district adopted a plan to promote what it viewed as “racial balance.” If a school was oversubscribed, the city would first give preference to students with siblings already enrolled there. Then, if the school remained oversubscribed, the district would employ a racial tie-breaker. When the plan was adopted, the student population of Seattle was 40 percent white and 60 percent “non-white.” The District lumped anyone who isn’t white � whether African-American, Asian-American, Hispanic or Native American � into the “non-white” cluster. Using this 40/60 ratio as a benchmark, the plan provided that if a school deviated by more than 10 points, it was racially imbalanced. After the litigation began, the District changed the 10 point margin to 15 points. For such oversubscribed and supposedly imbalanced schools, preference would be given to applicants of the underrepresented race or (in the case of nonwhites) race cluster. So if a school was 25 percent or less white, or 75 percent or more non-white, white applicants would receive a preference because whites are 15 or more points below the 40/60 benchmark. If a school was 55 percent or more white, or 45 percent or less non-white, non-whites would receive a preference. The plan led to some interesting mathematical anomalies. Because it applied only to oversubscribed schools, it had no impact at all on the most racially imbalanced schools in the district. Those schools, containing the fewest whites, were undersubscribed and thus uncovered by the plan. For oversubscribed schools, the numerical possibilities were bizarre. A school whose population is 25 percent white, 25 percent black, 25 percent Asian, and 25 percent Hispanic would be considered racially imbalanced, because its white population would be 15 points below the 40/60 benchmark. On the other hand, a school whose population is 26 percent white, 74 percent black, 0 percent Asian, and 0 percent Hispanic would pass muster as racially balanced. Because all nonwhites are lumped together, the total absence of Asian or Hispanic students in the hypothetical school would be irrelevant. And since the white and black populations squeezed in within 15 points of the 40/60 benchmark, the school would be deemed balanced. In the first year of implementation, about 300 students (out of a total of 3,000 applicants) were denied their first choice solely because of their race. Eventually, about 10 percent of the disappointed applicants left the public school system. Litigation ensued. For the past seven years, the case has wandered through the federal and state courts, culminating in a 7-4 en banc decision by the Ninth Circuit upholding the district’s plan. The majority reasoned that the plan survived strict scrutiny under the Grutter diversity exception enunciated by the court in 2003. Before Grutter, the court had allowed race to be used as a factor in public school admissions only when applied to integrate schools previously subject to de jure segregation. Seattle’s schools had never been segregated. In Grutter, however, a 5-4 majority held that public universities could include race as one factor to consider in developing the educational benefits thought to flow from a genuinely diverse student body. Judge Alex Kozinski joined the Ninth Circuit majority, but he did so in a revealing concurring opinion. He argued that strict scrutiny was the wrong standard. Courts should defer to local elected officials, he contended, and therefore they should apply a “robust and realistic rational basis review.” Implicit in his reasoning was the view that the plan could not survive strict scrutiny. The high court granted cert and heard argument last December. Of course, anytime the Supreme Court reviews a Ninth Circuit decision, the odds of survival are slim. In the past 21 years, the Ninth Circuit has averaged 14.48 reversals per year. Its nearest rival, the Fifth, has averaged 5.14, about a third as many, during the same period. Judge Kozinski’s views enjoy considerable influence at the Supreme Court, but it is unlikely the court will accept his invitation to invent a new review standard for racial admissions cases. There is a long history of treating the 14th Amendment’s pledge of equal protection to all persons as fundamental, warranting application of strict scrutiny. When the court created the Grutter diversity exception it took pains to justify it as a compelling state interest. Moreover, Kozinski’s homage to local authority seems misplaced in this case. In creating and implementing the plan, the district displayed a political correctness bordering on wackiness. Its Web site, until June 2006, defined racism as, among other things, “emphasizing individualism,” “having a future time orientation,” and “defining one form of English as standard.” Its application process allowed students to change their racial categorization once a year. The school board promoted a disturbing spirit of Balkanization, declaring the district “fortunate to have the pluralism brought by the African- American, Asian-American, American Indian, Hispanic and White Communities.” White community? Does Seattle really have a social stratum whose constituency and common values are defined by its members’ whiteness? And if it does, should the school board laud it? If the court reverses the Ninth Circuit and rejects the plan, there are at least three ways in which it can deal with the Grutter exception. First, it could follow Judge Carlos Bea’s trenchant dissent and rule that the plan just doesn’t fit the exception. In Grutter, the court approved the use of race in a “highly individualized, holistic” admissions process, which viewed race as one of many different factors, including family background, educational level, hardship, athletic ability, and so forth. In Seattle, the racial tie-breaker was applied by a computer programmed to ask one question: white or nonwhite. Bea, of course, had no choice but to accept Grutter as is, and to fashion his dissent in conformity with it. But the high court is not so constrained. A second possible outcome would be the court limiting the Grutter diversity exception to public universities and graduate schools and holding it inapplicable to K-12 schools. Such a limitation would make sense. K-12 schools must be open to all. But colleges and graduate schools are free to be more selective. Control over the composition of their student bodies is part of the educational mission of these institutions. Arguably, that control implicates First Amendment rights, since it may be connected to the kind of educational messages the schools wish to advance. It would be reasonable to allow elite institutions to exercise a greater degree of control over their student bodies than K-12 public schools can. Third, the Supreme Court could overrule the Grutter diversity exception. At first glance, such a possibility seems unlikely. While Justices Antonin Scalia and Clarence Thomas might support such a position, the court’s newest members, John Roberts and Samuel Alito, are judicial conservatives with records of respecting precedents. During his confirmation hearing, Roberts told the Senate Judiciary Committee that he wished to be known as a “modest judge.” He explained that one “part of that humility has to do with respect for precedent that forms part of the rule of law that the judge is obligated to apply under principles of stare decisis.” But is the Grutter diversity exception a precedent worthy of such respect? Grutter is a plant with shallow roots. The 5-4 majority that created the exception relied mainly on Justice Lewis Powell’s concurring opinion 25 years earlier in Regents of the University of California v. Bakke, 438 U.S. 265. Powell voted with the majority in that case, striking down a medical school racial set-aside program. But speaking only for himself, he also said that race might be used for “the attainment of a diverse student body.” Beyond Justice Powell’s solitary dicta, the Grutter majority had no legal precedent for its creation. It relied instead on expert opinions from academic and military circles. The expertise of expert opinion is in the eye of the beholder, and that eye is often conveniently nearsighted. Academic experts disagree among themselves on whether a racially diverse student body benefits minority students. And the Supreme Court, which relied heavily on military experts to justify using race as a factor in law school admissions, once relied on other military experts to justify the internment of Japanese-Americans during World War II. It is a safe bet the Supreme Court will follow its pattern of reversing the Ninth Circuit, and reject Seattle’s racial selection plan. The odds are longer � but they’re still good odds � that in doing so, the court will also reverse its own racial diversity precedent. Contributing writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind, specializes in intellectual property law.

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