1. Higher education In a study of admissions at the college level, Bok and Bowen (The Shape of the River) found that Admission rates for blacks were greater than for legacy admissions, which in turn were greater than for non-legacy white students The higher the SAT score, the greater the legacy advantage; at the highest SAT scores, the legacy advantage was almost as high as the black advantage Athletes who were identified by coaches as promising candidates had the highest admission rate 20 percent of Harvard and Yale students, 25 percent of Dartmouth students and 32 percent of Amherst students play on intercollegiate teams 1

2. Race-conscious districting In the past, voting districts were drawn in a way to prevent minorities from electing representatives from their community. With at-large voting districts, the majority can win all of the seats. If a minority represents 30 percent of the state’s electorate, legislative districts can be drawn to ensure that blacks never constitute more than 30 percent of the electorate in any one district. May legislatures draw districts to ensure that minorities can elect minority representatives through “majority-minority” districts? (The Voting Rights Act sometimes requires such districts.) 2

3. Race-conscious districting What is the harm from race-conscious districting to favor minority representation? Does it create second-class citizenship? No group second-class status, but what about members of the majority in a majority-minority district? Does it reflect a distorted political process? It does not seem to do so, but are blacks better off with great influence in a few districts or substantial influence in many districts? Does it stigmatize people based on their race? Doesn’t suggest that blacks are inferior, but is it acceptable to suggest that people can be represented fairly only by members of their own race? If race-based districting is not permitted, would we be singling out race as a prohibited group characteristic for districting (pages 593-594)? 3

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15. Race-conscious districting When does redistricting trigger strict scrutiny? The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations.... Miller v. Johnson (pages 592-593) 15

16. Race-conscious districting When does redistricting trigger strict scrutiny? Note the contrast with regular disparate impact analysis and affirmative action in higher education Under disparate impact analysis, the plaintiff needs to show that racial bias was a “but for” factor in the government’s decision. Similarly under Grutter, a plaintiff challenging affirmative action in higher education needs to show that race was a decisive factor With districting, the plaintiff has to demonstrate that race was the predominant factor motivating the districting body. pages 593-594 16

17. Race-conscious districting When is race the predominant factor? In a case such as this one where majority- minority districts... are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance. Easley v. Cromartie (page 594) 17

18. Race-conscious districting If the plaintiff gets to strict scrutiny, what counts as a compelling state interest? Remedying the effects of past discrimination (which can be difficult to prove) Compliance with the Voting Rights Act Pages 595-596 18

19. Parents Involved This case is like affirmative action in the way it involves voluntary policies by government to prevent blacks from being disadvantaged It’s also like the desegregation of the schools cases in the way the policies try to maintain integrated classrooms. 19

20. Parents Involved What were the facts in Seattle (page 600)? Seattle had a choice system for high schools. Ninth graders could express a preference for any high school in the district. If too many students chose a particular school, Seattle employed a series of tiebreakers, and the second tiebreaker was based on racial composition—white percentage should be between 31 and 51 percent (average of 41 percent), while non-white percentage should be between 49 and 69 percent (average 59 percent) Seattle did not have a history of racial discrimination in the schools; rather it was trying to compensate for racial patterns in housing (note dissent’s different take, page 611). 20

21. Parents Involved What were the facts in Louisville (page 601)? Louisville elementary school children were assigned to nonmagnet schools based on a combination of address (geographic cluster) and choice (within the cluster), with a requirement that black enrollment fall between 15 and 50 percent Thus, a student would not be assigned to a school if it would contribute to the school’s racial imbalance Louisville used to be under a court order to desegregate but it had reached unitary status and was released from the court order (again, dissent provides a different take, page 611) 21

22. Parents Involved Recall that the first question we want to ask in equal protection is whether we are in some form of heightened scrutiny Should the Court apply heightened scrutiny? Yes. “It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.” (III.A.) Hence, the schools need to show that their policies are narrowly tailored to serve a compelling state interest 22

23. Parents Involved Do we have a compelling state interest? Remedying past discrimination is a compelling state interest but Seattle never was found to have segregated schools by law, and Louisville had been declared unitary in 2000 (pages 601- 602) Diversity might be a compelling interest, but the racial assignment policies were not narrowly tailored to serve those interests The school districts argued that integrated schools provide better environments for students both socially and educationally, and the Court observed that there was disagreement on this question 23

24. Parents Involved Why is it unclear whether diversity is a compelling interest in elementary and high schools? What about Grutter ? We don’t have the concerns about freedom of speech and thought in higher education We don’t have a holistic, individual consideration of each child Hence, the Court does not defer to the judgment of the Seattle and Louisville school officials in the way it deferred to the judgment of the U of M law school officials (Thomas, page 606) Note how important it is whether or not the Court defers when there is disagreement on the interpretation of the empirical evidence 24

25. Parents Involved If diversity might be a compelling interest, why weren’t the Seattle and Louisville school assignment policies valid? The school’s policies were narrowly tailored not to the goal of achieving diversity but to achieving a goal of racial balancing. And that goal is unacceptable. Recall the point that a hallmark of a bad statute is that when you can identify a governmental interest that is well served by the statute, it’s not an appropriate interest. That’s what the Court is saying here. The statute isn’t really designed for promoting diversity, but it is well designed for simple racial balancing (pages 602-603). The Court also observed that the racial classifications had only a small effect on school assignments, which suggested that race-neutral policies would have been sufficient to promote racial diversity (page 603). 25

26. Parents Involved If the Seattle and Louisville policies were not valid, how might districts achieve racial diversity in their schools (Kennedy, page 608)? Through facially race-neutral methods: Strategic site selection of new schools Drawing attendance zones with general recognition of the demographics of neighborhoods Allocating resources for special programs Recruiting students and faculty in a targeted fashion Tracking enrollments, performance, and other statistics by race Note the dissent’s point that these approaches had been ineffective (pages 614-615) 26

27. Parents Involved How do we resolve the dispute between the majority and the dissenters? Is the majority correct that the racial classification of K-12 students is problematic in the way that Brown found racial classifications problematic? Is the dissent correct that the propriety of racial classifications depends on purpose? 27

28. Parents Involved The dissent observed that the use of race did not decide who would have opportunities “that are normally distributed on the basis of merit and which are in short supply” stigmatize or exclude pit the races against each other or otherwise significantly exacerbate racial tensions not impose burdens unfairly upon members of one race alone but instead sought benefits for members of all races alike keep the races apart; it brought them together 28

29. Parents Involved What about special academies for poorly-performing minority youth? Is it okay to make all-minority schools available as long as they are not required? Is there a difference between choosing a same-race spouse and same-race classmates for your child? 29

30. Parents Involved Does it represent a further narrowing of affirmative action? Perhaps not. The Court had previously rejected racial quotas or pure racial balancing. This case looks more like Bakke and Gratz than like Grutter. But what does it mean to perform a holistic evaluation of public school children? Was the problem the failure to consider other measures of diversity? Moreover, Justice Kennedy made it clear that schools are entitled to promote racial diversity even if the lack of diversity cannot be traced to state action. 30