Shades of Gray

In June this year, the US Supreme Court released an important decision on the use of race in school allocation. A 5:4 majority held that the use of race to decide school allocation fell afoul of the Equal Protection Clause. Justice Stevens and Justice Breyer entered strong dissents. The decision, the text of which is available here, makes for very interesting reading. Since a blog is meant to allow non traditional modes of expression, I am posting below the text of an email discussion on the decision with a colleague, RN, who is a keen observer of the US Supreme Court. Comments, as always, are welcome.

Dear xxxx,
Still haven’t had time to write anything but thought I would forward you some initial thoughts that I was discussing with an American friend on the race case-

Ah, RN, what can i say?! the decision was heartbreaking, yes, but far from unexpected. The doctrine has developed in such a way that the "narrow tailoring" requirement is central. Without a specific, individualized routine for making cuts, these programs just won't stand. as always, I’m impressed with how much you know about the Court here, down to the preferences of each justice and how court politics work. I’m right now at the ______. As it happens, I'm in the ______ section, so this case has a direct and not insubstantial impact on the work we do. The discussion we have about the outcome is strikingly less theoretical and doctrinal than discussions in law school; our focus on what we do from here, and how it changes the work we do, if at all (we deal a lot with districts under desegregation decrees, which means race MUST be taken into account in overcoming past de jure segregation). i'm now working on an article with a DOJ attorney, wherein we're trying to make the case that the de jure/de facto distinction is misleading and should not carry as much analytical weight as it does (cf. the better parts of what I thought was a sloppy Breyer dissent). We then want to make the argument that districts can stipulate to de jure segregation, enter in consent decrees (contracts, in essence) and work with the government to fashion race-based remedies. We’ll see. Currently, some districts are using socio-economic status to divide up children; at times, this is a good proxy for race, but at times it really isn't.

RN’s reply:

Your ideas are certainly intriguing but I dunno what kind of evidence would be needed to prove segregation by the school boards. I doubt Roberts would buy such a line, didn’t he write somewhere that the school boards have not been able to prove segregation?

Besides I think that as per Thomas, de jure segregation needs a statutory basis not mere societal practices. The way I see it, in cases of de jure segregation (in the old south for example), racial remedies are required by law as a positive duty under the equal protection amendment. In cases where the segregaton is defacto, such a positive duty does not exist (I believe the observations in Swann, Millikin etc say the same thing). Racial consciousness to remedy de facto segregation does not have a basis in the equal protection amendment. So there can never be a case arguing that the state needs to remedy de facto segregation unless it is proved beyond a doubt that the different schools for communities have unequal facilities. Since the sociological views are far from clear, I dunno how a court can so hold.

However, the state can and in my view has a strong moral obligation to ensure that different kids study together. For example, little Italian americans should study with Indian kids and explore the possibiltiies of becoming doctors, engineers and petty bourgeousie instead of pasta-makers, olive oil sellers and petty mafiosi. Snide remarks aside, the diversity rationale is a strong policy factor which can and should be taken into account by school boards and indeed the state.

It would be very difficult even for Thomas to say that a policy designed to bring people together is a goal unworthy of the equal protection clause. Indeed, the contours of the two are actually different. Actually, under the diversity rationale, black and white kids are treated equally in the sense that when each is faced with the racial tie-braker, each could loose equally. I mean black kids also have to go 10 miles like white kids. Both sides are inconvenienced by means of a necessary lottery to ensure racial diversity. In the lottery, both white kids and black kides can be inconvenienced equally to ensure the greater national good of diversity. If a method can be found by which the persons who have to go to different schools are impartially and fairly chosen, I cant see how the equal protection clause is violated. To the extent parents are denied a choice, well, national interest deprives you of certain choices, such as the choice to support communism, scream fire in a crowded theatre, etc.

If schools are equal, there is no stigma attached to any school, as there is no competitive exam to get through- the system works on a lottery, I still can't see how or why racial consciousness in the way used is wrong. The only argument I can see that it is wrong and unfair to "judge" someone on the basis of race and deny him/her the choice to go to a school closest to him for that reason-why should A go to neighbourhood school while B goes 10 miles away? the answer to that can be found if there is a way to distinguish between A and B. If you apply first you get your choice and later you take a chance or another method to ensure that the burdens of diversity are met non-arbitrarily. As regards "narrow tailoring", i cant think of how narrower tailoring is possible:

-Most kids go to neighbourhood schools.
-To ensure diversity, guided by racial composition, a few kids who apply late or are chosen for some rational reason may loose a tie breaker and go another school equal in every way except distance.

Perhaps the school board can cause a shifting of schools in some time or compensate the kids for the loss of "liberty". In the end for diversity u need to take account of color. Taking account of is not discrimination if the basis is rational and it is for a worthwhile goal. I guess, this is the argument that was defeated by the majority decision.

- RN


Dear RN,

Thanks for forwarding these. Interestingly, if you see my comments, we seem to be ad idem on quite a few aspects. I got the distinct impression from the plurality's opinions that de jure segregation requires segregation by statute. Loved the petty mafiosi line. The points you make about the impugned school system imposing equal burdens on blacks and whites alike are important ones. Theoretically, white kids could derive more benefits from the scheme than black kids, if the racial balance were to tilt that way. In India, qua 16(4), the 'adequate representation' aspect of the text of the article has been entirely ignored. Arun Shourie provides empirical data to show that some castes are in fact over represented. IF the US were to go the Indian way, 10 years later their court would hold that white/back kids who got into school on thier own merit can't be counted towards the 'diversity' figures!

Tangentially, could racist court opinions be produced as evidence of de jure segregation? The Courts are considered 'State' and opinions like Dred Scott and Plessy (or their equivalents at the states level) leave little room for doubt. And the US SC has held that federal courts are capable of, and have in the past, violated the Equal Protection Clause.

Regards,

xxxx



Dear xxxx,

When judges interpret words like liberty and equality, its almost impossible to impugn their interpretation as proof of de jure segregation. Separate but equal is a valid theoretical interpretation of the equal protection clause although one which needs to be rejected as separate is not equal. I don't know if the diversity argument works in context of Article 16(4). The justification of reservation remains the remedy of past racial discrimination while diversity has nothing to do with the past- only with the future.

My point essentially is that the fact that governments can validly choose to promote diversity and indeed there is a moral obligation in this regard. This is different from reservations and quotas which are meant as a redress for inequality. Diversity has nothing to do with inequality, or "racial aesthetics" like that idiot Thomas seems to think. I cant see how diversity causes "discrimination" in the same way segregation did. The interacting dimensions of equality and diversity come into being when diversity would harm institutions that are minority dominated and do well by themselves.

Take for example magnet schools which benefit loads of black kids. If these were made diverse the very features that cause tem to be successful would go away and the result would be unequal treatment of black persons who would not be allowed to study in conditions that are good for them. The balance would be to ensure to equal protection is not compromised by diversity. Equal protection is a constitutional obligation while diversity is a political choice and the former must win against the latter in all cases. I guess if magnet schools can be justified on the basis of equal protection, they should be allowed to stay: for them diversity could be attained by school interactions, camping trips, exchange programs etc.

My point is black and white kids should always study together until the point that equal protection is vioalted in the sense that equal opportunity is threatened. In such cases, other means can be considered. I know my thoughts sound muddled but i feel the theoretical difference between de jure and de facto segregation does cause difficulty in race policy in schools but that is no excuse for abandoning diversity.

I cannot believe smart lawyers like Roberts and Scalia could not see this. I don’t expect much from Thomas (who incidentally is the best example against affirmative action) or from Kennedy who has not got a consistent thought process. The plurality opinion relied on "ratio" rejected "dicta" and ignored the context of Justice Harlan's Plessy dissent and Brown. The high school debater points of the Swann "obiter" were outrageous and I can totally understand Breyer’s bewilderment at the same. Breyer had the better moral and legal argument although in my view, he should have tried to distinguish between diversity and the remedy against de jure segregation. Brayers dissent was long and perhaps not too well focussed but I would still prefer that over the plurality opinion.

- RN


Dear RN,

Interesting point about judgments- the breadth of meaning does cover them.

I agree that diversity is an important and desirable end by itself irrespective of past discrimination. I think the difference b/w de jure and de facto segregation is artificial, but you resolve that well by saying that while the Equal Protection Clause mandates state action to remedy the former, the diversity motive is strong enough to constitutionally sustain state action to remedy the latter. Did I understand you correctly in this? Also, Is diversity a strong enough motive to permit endless tinkering and fine tuning? Does it overcome the objection that measures based on race must have some discernible end point, or does this objection only pertain to remedial measures?

We could benefit from introducing the 2 fold (past discrimination and/or diversity) 'compelling interest' test in the context of Art. 16(4)- the art. itself only indicates it's meant to remedy 'inadequate representation' and would permit the reading in of the diversity motif, even though it was not contemplated by the Framers. Or would this just provide another tool for the politicians to chop vote banks even finer? I am told the petitioners are now arguing 'compelling interest' before our SC in the OBC matter.

Regards,

xxxx


Dear xxxx,

You got my point correctly. As regards the fact that diversity would imply "endless tinkering with race"- as a policy periodic review would be essential. When neighbourhoods stop being segregated, diversity is no longer necessary. The point is that back and white together is always important enough to meet the minimum criteria for satisfying the equal protection clause. That said I don’t think that the mere use of race for a long period is automatically in violation of equal protection.

Besides I still cannot understand the discrimination. Suppose, for example, that electricity was scarce and had to be rationed. The government decided by means of a lottery the homes where there would be no electricity for any day. Could the victims then complain that equal protection is violated because there is no difference between them and those with electricity? I hardly think so. For scarce resources, a fair test can be used to ensure that a good is available to all. I think neighbourhood schools are such a scarce commodity that would need to be so divided.

Besides like Kozinsky and all said in the federal courts, there is no discrimination and stigma involved. To answer Kennedy there is nothing that stops kids from their own concept of self etc. The policy arguments about the end of the neighbourhood and extra-curricular activities can and should be remedied by additional action. The point about an end point is with reference to past discrimination and not diversity action. Obviously, equal protection does not mean action forever unless extra-ordinary circumstances exist but diversity cannot naturally end unless it is achieved. Naturally, after desegregation is OK’ed by the courts, the counties cannot be compelled to go for diversity, but if they choose to do so, and if the program is fairly carried out, I cant see why it cannot go own forever.

- RN


Dear RN,

I don't see a problem with endless tinkering qua diversity once it's accepted as a desirable and constitutional goal in itself, de hors the past discrimination aspect.

The electricity example can also be used to demonstrate why de facto seg. is just as bad, and perhaps even worse, than de jure seg. If it was empirically found that the lottery always came out in favour of the whites, then surely a race based remedial measure would be justified, though the mechanism is facially race neutral.

I think for Roberts the 'discrimination' element lay in the fact that once the tie breaker was applied, the denial of school choice was on the basis of race. Without seeing the record, it is very difficult to tell who's telling the truth about the way in which the plans worked. Roberts and the others make it sound as if they Districts themselves weren't sure about how they were applied and were very crude, without any alternatives being explored. Breyer paints a very different picture, and leaves no doubt they were narrowly tailored and thus satisfied the compelling interest test. I think the plurality can easily be read as saying that plans based on race are not per se unconstitutional, as long as they satisfy the narrow tailoring requirement.

Are there any 'takeaways' from the judgment in the Indian context? I really liked the fact that the race criterion could cut both ways and favour both blacks and whites. If we just forget about past discrimination, and concentrate on diversity as a means of integrating OBCs/SC/STs at the primary/secondary school level, would that work? I am anyway completely against reservations beyond this level. I think more than anything else we would benefit from the importation of the 'narrowly tailored' test. Since it's empirically proven that reservations in their current form are a complete failure and a mess, that should provide an easy ground to get rid of them and hopefully get rid of all that 16(4) 'facet of equality' rubbish.

Regards,

xxxx


Dear xxxx,

My point about the lottery was refaced by the fact that it has to be fair. If it is impeachable at all then it would be unconstitutional as it would be in violation of the equal protection clause. Basically, diversity treads on a very thin line constitutionally and care has to be taken that it doesn’t fall "into the ugly abyss of racism."

Anyway, I disagree with Roberts and the plurality and don’t think denial of school choice resulted in "discrimination" in the school cases.

As regards implications for India, what our judges should realize is that 16(4) does not equal quotas. If reservations are not effective they are certainly unconstitutional and the government is obligated under 16(4) to find effective mechanisms. The positive duty in our constitution is explicit unlike in the American context. Equating reservations with social justice without seeing whether it works is plainly unconstitutional, at least in my view. Courts should compel government surveys, and evaluation as to who benefits and how much.

- RN


Dear xxxx,

One more point about the theoretical difference between de facto and de jure segregation. It’s sort of like what someone said about inequality. Don’t remember the exact context but the idea was that inequality in itself is not unfair if it is the result of processes which are fair.

The point is if the grasshopper spent the entire summer prancing about and did not follow the example of the squirrel which was hiding nuts for the winter, then the fact that the grasshopper starves in the winter is entirely a product of his own actions and he deserves no help as a right. I mean he can be helped out of charity but not out of justice.

Similarly de facto segregation simply because whites and blacks live separately due to cultural and economic reasons does not raise issues of unfairness provided that the people themselves are responsible for those cultural and economic reasons. Of course, if neighbourhoods are black because all the whites moved out to avoid the blacks or if blacks were "blackballed" by RWA's or something or if blacks are poorer due to lack of opportunity rather than a lack of hard work or talent , de jure and de facto segregation is not different and equal protection clauses then do come into play and the justification for racial classification is remedial rather than diversity.

The issue then is how objectively can the cause of segregated neighbourhoods be evaluated. Thomas and the plurality indicate judgments and legislations or a kind of historical test by which the old south is segregated by law and the rest of the country by accident. I'd say Breyer was correct here as well although the NAACP suit was never proved or established.

I guess, all in all, relying in diversity and the political process should be safer for most liberals in the US although in extreme cases the lack of difference in the de facto de jure issue I have just discussed could be brought out.

- RN


Dear RN,

Completely agree that inequality which is solely the result of lassitude should not be sought to be remedied by state action. Much sociological debate is of course possible regarding what makes a lazy bum a lazy bum. Other than that, I would agree that remedial action should be permitted for both de jure and de facto segregation, as long as the effects of both are the same. To demand that the segregation be embodied in a statute before remedial measures are permitted is just silly.

- xxxx