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Parents v. Seattle

03 07 07 - 16:36 Parents v. Seattle is not a law and technology decision, but it is an important decision in the area of civil rights and I think its importance betrays our usually restricted focus on technology-related issues on the SCTL Blog.

In a post on Blackprof.com, I argued that the Supreme Court’s decision in Parents v. Seattle fails as a ruling justified by what we may view as morally correct. Although that point warrants further explanation, here, I am only going to focus upon what I see as the paternalism emanating from the plurality opinion.

Strictly speaking, the court ruled that government has no compelling interest in promoting diversity by the use of race standing alone as the determinative factor in non-postsecondary public school admissions. Therefore, such use is unconstitutional (under the Equal Protection Clause).

Looking at Gratz, Grutter and Parents v. Seattle for distinctions, it is apparent that the Court scrutinizes the fact-finding of the lower courts in search of evidence whether race is the sole factor or one among many. Notably, the defendants in these cases have consistently contended that race is one among many factors so the Court does not rest its judgment on the objectives of the government. Instead, the Court searches the record (and more) for its own assessment. If done carefully, the Court’s search might be a worthy venture, but I am doubtful. Are the three cases cited above really that different or is the Court reserving for itself the application of an amorphous standard that is pushing the principle of Brown v. Board toward a point of irrelevance?

Justice Scalia, for example, joined Chief Justice Roberts’ opinion, which approvingly cited Grutter for its permissible use of race in post-secondary admissions. But, Justice Scalia’s opinion in Grutter (Scalia dissented in part and concurred in part) called Michigan Law School’s critical mass admissions a “sham.” Justice Scalia also explicitly agreed with Justice Thomas who questioned the veracity of Michigan’s asserted interest in diversity.

In my view, despite Chief Justice Roberts’ asserted distinctions between Grutter and Parents v. Seattle, Scalia and Thomas seem poised to find the government’s use of race in admissions lacking compelling interests. Indeed, it is doubtful that two of the four justices signing onto the plurality opinion genuinely see any difference between Grutter and Parents v. Seattle other than the practical difference in how the justices voted.

Since the Court’s use of strict scrutiny provide it with apparently broad discretion to recast the factual predicates of an admissions program any way the Court deems (there seems to be very little deference to lower courts or to schools on such facts), I do not see any principled basis for the Court’s rulings in these cases other than rank paternalism. This does not bode well for the future of Brown v. Board.

As Justice Scalia stated plainly in Grutter, in his view, the “Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” This is an absolutist position that embraces the ill conceived “separate, but equal” doctrine. This means that Brown v. Board needs intensive care to save it; to the extent that Justice Kennedy disagrees with the plurality opinion in Parents v. Seattle, his future votes could help resuscitate Brown v. Board.