September 16, 2006
Raceless in Seattle
September 16, 2006 03:00 PM
As Justice Thomas, I have voted with the majority of my colleagues to strike down Seattle's use of race to strike a rough balance in its public schools. While I believe that the use of race requires the strictest of strict scrutinies, such that only preventing anarchy or bodily harm can justify it, my colleagues believe the Seattle system is impermissible even under the most liberal reading of Grutter. The program is nothing more than an impermissible racial balancing that Grutter specifically prohibited.
I will write a more detailed post on this down the road once my co-Justice and I prepare a first draft of the majority opinion. However, at this early stage, the judgment of the Court is clear. The judgment of the United States Court of Appeals for the Ninth Circuit was/is/will be reversed and the case remanded for further proceedings. IT IS SO ORDERED.
I suppose it comes down to whether you are more concerned with the 15% factor (numerical, thus like Gratz) or with the use of race as tiebreaker factor (holistic, thus like Grutter). On the other hand, this situation clearly lacks the pernicious tendency to make underrepresented minority students feel like they always are suspect in their accomplishments that, judging by your Grutter dissent, was the most terrible aspect of the use of race. More integrated schools will lead to more equal resources, not only of money but parental attention, put into students' education, which ought to lead to less of a perceived need for affirmative action in the long run. See Ginsburg's concurrence in Grutter.
You mentioned Grutter, not me. Tell me where in the Constitution is the prohibition on the use of race except in voting (15th Amendment).
I mentioned Grutter for what my colleagues in the majority believe. The certified question is on the application of Grutter and the holding will reflect that. We will not use this case to overrule Grutter's holding that diversity and a critical mass are compelling state interests. That doesn't mean I personally wouldn't. The Constitution also makes no reference to women other than with respect to voting. Ironic eh? But it does mention that no person shall be denied the equal protections of the law. It doesn't mention on what basis. Whether a person doesn't enjoy the benefits conferred by the state on account of race, religion, gender, etc. makes no difference to me. It is not the state's business to pick and choose her beneficiaries...with very limited exceptions. Screaming ra ra that race isn't mentioned is akin to arguing that the internet isn't mentioned in the First Amendment.
The real question is there will be a cert grant in the Texas dildo case.
The comparison to the non-mention of the internet in the First Amendment is not useful. The First Amendment is not about format, it is about freedom to create and disseminate content. Any format is equally protected inasmuch as its content is protected.
The 14th Amendment is wholly different. The Supreme Court has assigned different levels of scrutiny to different aspects of the person (race with the highest level, then religion and national origin, then sex, with sexual orientation and gender identification at the bottom). If it's not the state's business to pick and choose beneficiaries of equal protection of the law, why can the state discriminate against homosexuals in military service?
Thanks for the heads-up on the Texas dildo case -- I hadn't seen that. I think the sale distinction is a valid one: the state is clearly empowered to regulate commerce, including commerce in items or services relating to sexuality. Even if Texas cannot ban the use, possession or distribution of dildos, it should be able to prohibit their sale. (Obviously this is wholly ineffective, given the number of sex toy shops immediately around the Houston airport.) The citation of Eisenstadt v. Baird doesn't work because the lecturer at the college was distributing the vaginal foam for free, not selling it to the students. The state can choose to license or prohibit commerce. If it couldn't, then there would be a constitutional right to engage in prostitution.
We haven't yet fought a Civil War over sexual orientation. Until we do, those advocating that all bases of denial of equal protection are the same have an uphill fight.
We didn't fight a Civil War over race or gender, either. If you want to talk about something that gets scrutiny and that we did fight a Civil War over, I suppose you could invoke state alienage, i.e. that one state cannot discriminate against citizens of another state. If one applies the non-Apu version of history, you can say that we fought the Civil War over slavery, but that's not quite the same thing as fighting it over race. The Union had racially-segregated units to fight it.
We can read the 14th and 15th Amendments together (and to a lesser extent, the 14th and 19th) but it's not a reading likely to appeal to a textualist nor an originalist.
Homer: Thanks. Are you sure you don't want to come? In a civil war re-enactment we need lots of Indians to shoot.
Apu: I don't know what part of that sentence to correct first, but I cannot come.
But you're focusing to much on the nitty gritty and ignoring the greater point that Justice Thomas is trying to make. I appreciate the history lesson. Actually I don't. But if you'd like I can bring other examples of race/ethnicity being used by the various States or the United States to deprive someone of the equal protections of the law...far, far more horribly than say discrimination against gays.
To summarize, it doesn't matter on what basis the government discriminates. But if it happens to be race, then I will apply the strictest of strict scrutinies. Frankly, the Court has been easing up on its strict scrutiny when it comes to race simply because the government argues that a particular use is beneficial. See, Grutter. Haven't we seen THAT before?
I don't follow your argument. Are you saying that because States had prohibited marriages based on the race of the participants, it's OK for States to prohibit marriages based on the sex of the participants?
As for the government's argument that a particular use is beneficial, of course the government would argue that. Race is a nice easy metric; we could apply much heavier security measures on all men of Middle Eastern and South Asian descent to make Al Qaeda work harder to recruit white women for their terrorism, and it would be beneficial inasmuch as anything that makes AQ's planning more difficult is beneficial to us. The Court repeatedly has asked the government to engage in more individualized decision making rather than lumping people together based on race -- hence the rejection of a point system in Gratz, but the embrace of holistic evaluation in Grutter; the requirement that California look for another way to prevent interracial violence (perhaps by working harder to detect gang membership? those tattoos can be helpful...) was based on a preference for individualized determinations.
Seattle's use of race may well be too inclined to lump people together based on race, and can be best remedied by requiring the city either to make more individualized assessments or abandon the use of race entirely. If integrating schools is an important goal for Seattle, it will choose the former; if the city has other priorities, it may opt for what is easier. But a blanket prohibition incapacitates localities and states from finding the best solutions to the problems they face.