Civil Rights, 2010Moritz College of Law,

The Ohio State University

Guest Lecturer:Stephen Menendian, J.D.

Parents Involved in Community Schools v. Seattle School Dist. No. 1

Conversations Across Paradigms

Share Your Conversations!

What is this?

The Answer depends on your Paradigm

In the sciences, therefore, if perceptual switches accompany paradigm changes, we may not expect scientists to attest to these changes directly. Looking at the moon, the convert to Copernicanism does not say, “I used to see a planet, but now I see a satellite.’ That locution would imply a sense in which the Ptolemaic system had once been correct. Instead, a convert to the new astronomy says, “I once took the moon to be (or saw the moon as) a planet, but I was mistaken.” That sort of statement does recur in the aftermath of scientific revolutions. If it ordinarily disguises a shift of scientific vision or some other mental transformation with the same effect, we may not expect direct testimony about the shift. Rather we must look for indirect and behavioral evidence that the scientist with a new paradigm sees differently from the way he had seen before. --Thomas Kuhn, the Structure of Scientific Revolutions, p. 115.

Takeaway: There is no way to persuade someone of one paradigm over

another. There is nothing to appeal to, no facts to controvert, no statistics to cite.

Paradigms are only changed through radical subversion: a gestalt shift.

http://www.bigsoft.co.uk/blog/index.php/2008/04/25/dancing-girl-optical-illusion

Gestalt Shifts: Which way is the dancing girl spinning? (click link below)

Cross-Paradigm Example: How do you Define Racism? Is voting for someone because of their race racist? What if that person grew up under Jim Crow?

Is affirmative action racist? Is dating only people of a certain race racist?

Definitions of Racism Colorblind Definition: any action or differential treatment

based on any racial characteristic under any circumstance Discrimination:

(1)( a): the act of discriminating (b): the process by which two stimuli differing in some aspect are responded to differently(2): the quality or power of finely distinguishing

(1) and (2) would seem to confirm the colorblind definition of racism. Discrimination is simply distinguishing between two stimuli. Racial discrimination, it would seem, would be distinguishing between things on the basis of race.

How do you Define Racism?As far as my understanding of racism, it’s usually a belief that one’s own race

is superior, and responding to other races with domination/fear/hatred/subjugation. So, how is attraction to a particular race, well, racism? This idea of attraction is not laced with domination, subjugation, fear and hatred of other races.

As a bi-racial female, I’m attracted to Caucasian males, but this attraction to white males does not make me hate, fear or want to dominate other races, they just don’t do it for me most of the time…? I’ve dated Hispanics, Asians, and African Americas, but my base attraction is towards white males. So again I ask, where does racism step in? I don’t hate black men, and if I were single and a black guy showed interest in me and there was chemistry, hell yeah I’d have no problem dating him. But because my preference is towards white guys that’s…racist? How?

- Online Comment, Newsweek Forums

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Thinking Like a Lawyer

The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.

F. Scott Fitzgerald

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Parents Involved In Community Schools v. Seattle School Dist. No 1 (PICS) (2007)

Seattle assigned students to oversubscribed schools on the basis of a series of tiebreakers.

1. sibling attendance. 2. Racial imbalance – 15% plus/minus from racial makeup of

school system as a whole. 3. School distance.

Louisville/Jefferson County: racial guideline required each school to seek black enrollment of at least 15% and no more than 50%.

Parents of non-minority students sued the Seattle and Jefferson County school districts, claiming that the student assignment plans denied their children the equal protection of law under the 14th Amendment to the US Constitution.

Standard of Review?

Parents Involved In Community Schools v. Seattle School Dist. No 1 (2007)

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Levels of Scrutiny Rational basis test - rationally related to legitimate interest

everything else Intermediate scrutiny- substantially related to important interest

gender & illegitimacy Strict scrutiny - narrowly tailored to compelling interest

race & national origin

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Racial ClassificationsAll racial classifications are analyzed by a

reviewing court under strict scrutiny. Such classifications are constitutional only ifnarrowly tailored further compelling governmental interests.

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“Benign” Classifications --Affirmative Action There was much dispute about the level of review that

should apply to instances in which a classification was made to help minorities.

This debate ended in 1995 when a majority of the court decided that “benign” or “remedial” classifications raise strict scrutiny review. “Absent searching judicial inquiry into the justification for such

race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial.’” Croson

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Under Strict Scrutiny, What Interests are Compelling?The Court has found only two interests compelling:1) Remediating De Jure Segregation (i.e. Brown)2) Viewpoint Diversity in Higher Education (Bakke,

Grutter)

The Court rejected remedying societal discrimination as a compelling interest.

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Narrow Tailoring The tailoring that is required will depend upon the

interest asserted. In Grutter, the following were elements of narrow tailoring:

1. Individualized, Holistic Consideration of Applicants2. Absence of Quotas3. Consideration of Race-Neutral Alternatives4. Undue Harm 5. Limited in Time

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Grutter and Gratz

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Changing Composition of the Court: Justice Kennedy is the Critical Vote

Court held that the plans at issue were not narrowly tailored. The use of the racial tiebreaker within a particular +/- range

was unconstitutional.

Court affirmed that 1. maintaining racially diverse schools and 2. preventing the harm racially isolation are compelling

government interests

Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007)

Conservative Paradigm Neutrality Objectivity Formalist“Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

-John Roberts (2005)

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“I thought that was one of the absolute restrictions, that you cannot judge and classify people on the basis of race. You can pursue objectives that your school board is pursuing, but at some point you come against an absolute, and aren’t you just denying that?”

“The purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than on the color of their skin. So saying that this doesn’t involve

individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color.”

Racial imbalance (in schools) can result from any number of innocent private decisions, including

voluntary housing choices.

Individuals schools fall in and out of balance in the natural course, and the appropriate balance will shift

with a school district’s changing demographics.

Justice Thomas, Concurring, Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007)

Natural

J. Kennedy, Concurring

That the school districts consider these plans to be necessary should remind us that our highest aspirations are yet unfulfilled.

School districts can seek to reach Brown’s objective of equal educational opportunity. But the solutions mandated by these

school districts must themselves be lawful.

In my view, the state-mandated racial classifications at issue, official labels proclaiming the race of all persons in a broad class of citizens – elementary

school students in one case, high school students in another – are unconstitutional as the cases now come to us.

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Justice Kennedy, Concurring

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing

attendance zones with general recognition of the demographics of the neighborhoods; allocating resources for special programs; recruiting students and

faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race-conscious but do not lead to different treatment

based on a classifications that tells each student he or she is to be defined by race.

“If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational

opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general waywithout treating each student in a different fashion soley on the basis of

systematic, individual typing by race.

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Two Views of Equal Protection Clause

Atomistic The problem: bad apples

Colorblindness as the goal

Systemic The problem: poisonous tree

Anti-subordination as the goal

“Reconstitive Constitutionalism” What are the elements of it? Situated Contextual

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“It seems to me that there is a terrible problem in the country. The problem is that there are lots and lots of

school districts that are becoming more and more segregated in fact, and that school boards all over are

struggling with this problem.”

“It seems to me you’re saying you can’t make an omelet without breaking eggs. Can you think of an area of the

law in which we say whatever it takes, so long as there is a real need?” Justice Scalia

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Justice Breyer

How could the Constitution which says that this is intolerable, that segregated school, and insist that school boards take the

black and white children and integrate them…How could the Constitution the day that that decree is removed tell the school board it cannot make that effort anymore, it can’t do what its

been doing, and we’ll send the children back to their black schools and their white schools?

The Constitution wanted, as they said in the Slaughterhouse cases, to take people who had formerly

been slaves and their children and make them full members of American society. And part of that was that the State couldn’t insist that they go to separate schools.

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Massive Resistance and Neutral Princples Wechler’s Neutral Principles Brown was concerned with the harm of group subordination:

condemned segregation as a practice by which a group with political power denied equality to a group lacking it

Under this view, Wechsler argued that Brown could not be grounded in neutral principles. “If the freedom of association is denied by segregation, integration forces

an association upon those for whom it is unpleasant or repugant”