A Supreme Court Conversation
Dear Dahlia and Walter,
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StumbleUponWarm thanks for inviting me to join your conversation, which I have been savoring from the sidelines. My only regret is that, for me, it will be harder to figure out the deep inner meaning of these two big school-race cases than it would have been to ruminate about what "Bong Hits 4 Jesus" means.
These are very hard cases, I think, both in terms of projecting their impact and in terms of figuring out who on the court comes closest to being right. As you anticipated, Walter, I have more doubts about race-based school assignments than you and Dahlia do. But I do hope to sweeten my contribution to the pot by ending this post with a not-so-secret plan that could achieve at least as much racial integration as the two programs that the court struck down—while running no risk of invalidation.
I generally agree that Justice Kennedy's controlling opinion leaves more room for school integration and affirmative action programs than one might think from the apocalyptic tone of Justice Breyer's dissent. How much more room? Kennedy is not at all clear on this. Indeed, much as I sympathize with his unwillingness to come down hard on either side, his controlling opinion will be of very little value to school officials trying to figure out what they are allowed to do or to lower courts trying to figure out what the law is. A friend observes, with some hyperbole: "Every sentence in his opinion contradicts the sentence before it."
Kennedy obviously hates the idea of anyone telling a child, "You can't go to this school because you are the wrong color." But he does not quite slam the door on all programs that do this, and unlike the plurality portion of Chief Justice Roberts, Kennedy sees a need for energetic governmental promotion of school integration.
In this respect, the Kennedy-in-the-middle Court has some resemblance to the old Sandra Day O'Connor-in-the-middle Court and the older Lewis Powell-in-the-middle-Court—the one that ended 20 years ago when Kennedy replaced Powell. The issues are different, the actual holdings are different, but the music is similar: O'Connor and Powell, like Kennedy, exuded the feeling that these are very hard issues and we should not come down too hard either on the "colorblind Constitution" side or on the "we worship diversity" side.
This is not to deny that Kennedy's newfound majority-making position shifts the court's balance to the right on racial issues from where it was when O'Connor was the majority maker—at least, that is, if we are talking about the O'Connor who wrote Grutter v. Bollinger in 2003. Kennedy actually seems very close to the O'Connor who concurred in Adarand v. Pena in 1996; since then, she moved ("evolved"? whatever) markedly to the left on race and other issues. It's also interesting that the chief justice is able to cite, accurately, quite a bit of Justice O'Connor's language in Grutter, such as her assertion that racial balancing for its own sake was "patently unconstitutional." While Grutter was seen as the high watermark for affirmative action, O'Connor's residual doubts about race-based programs give plenty of ammo to the conservatives.
I share Justice Kennedy's concern about the Roberts plurality's "all-too-unyielding insistence that race cannot be a factor." I also find it hard to identify as conservative "judicial restraint" the plurality's apparent eagerness to rule out strategies that local school boards consider necessary to promote integration.
And I am less than confident (pending further study) that Roberts' opinion for the majority, as reined in by Kennedy, was right to reject the views of "two of our wisest federal judges" (as Justice Stevens aptly called them in dissent): Michael Boudin of the 1st Circuit and Alex Kozinski of the 9th. Both have blessed race-based student assignment plans that (in Kozinski's words) "give the American melting pot a healthy stir without benefiting or burdening any particular group." Both are Republican appointees.
At the same time, I also share Kennedy's sense that the dissenters' alarmist, accusatory, you-are-killing-Brown rhetoric was over the top; that the implications of their position would perpetuate "taking account of race" in all walks of life very far into the future; and that their distortions of the holdings of many prior cases were in some cases "baffling" and generally hard to take from people who have made stare decisis a mantra.
And benign as the Jefferson County, Ky., and Seattle plans that the majority struck down may look from a distance, the Seattle plan, at least, is not so pretty up close. I can see why Kennedy (and four others) thought they flunked the "narrow tailoring" test. Begin with the fact that these plans have not affected very many students and have achieved only a marginal, even "minimal" (Roberts' word), amount of integration. Add that they have not even touched Seattle's two nearly all-black, most racially isolated schools. Also add the oddity of the same Seattle school board blessing an "African-American Academy" that is nearly all-black by design even as it extolls racial diversity.
Of course, the plan's effect on relatively few students also shows that they don't impose burdens on many people. Still, some of the burdens that they do impose are pretty bad—not as bad as the days of de jure segregation, but bad enough. A Seattle student named Andy Meeks, for example, asked to be placed in one of three high schools that seemed most likely to help him continue to thrive—as he had in a middle-school honors program—despite his attention deficit hyperactivity disorder and dyslexia. But because he was white, he was denied all three choices and assigned to a school that he could reach only by taking three city buses, with a round-trip commute of more than four hours a day.
Does a slight shift toward integration warrant results such as this, when it's juxtaposed with the damage done by perpetuating the poison of allocating benefits based on race?
My doubts about these particular race-based plans are reinforced by the ease with which a measure of racial integration could be accomplished without race-based student assignments. This brings us back to my not-so-secret plan, which I sketched in a National Journal column (subscription required) after the oral argument last December:
But the news is not all bad for those of us who share the four liberal justices' sense that more racial integration would give many students better educations and foster interracial understanding and social cohesion.
There is another—perhaps better—way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students' socioeconomic status in making school assignments and to give underprivileged students—who are disproportionately black or Hispanic—the opportunity to attend middle-class schools.
Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.
Such socioeconomic integration is actually more effective than pure racial balancing at improving the academic performance of poor children of all races, studies show. …
And in many areas, 'socioeconomic integration also will produce a sizable amount of racial integration,' according to "A New Way on School Integration," [PDF] a recent paper by Richard D. Kahlenberg of the Century Foundation.
So, guys, how about it? Would it make more sense to pour integrationist energy into such programs (and their analogues in the university-admissions context) than to keep fighting over programs that tell children (and others): "Sorry, you're the wrong color"?
Regards,
Stuart
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Remarks from the Fray:
This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."
This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"
--CaLawyer
(To reply, click here.)
I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.
I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.
--SlateSurfer
(To reply, click here.)
It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.
--rrfan
(To reply, click here.)
With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.
--Tori_Fox-Hunter
(To reply, click here.)
The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.
So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.
The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.
--randy-khan
(To reply, click here.)
Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?
--Aagcobb
(To reply, click here.)
Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!
The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.
Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.
--Dilan Esper
(To reply, click here.)
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