Fear of a ‘Non-White’ School District

Writing on his blog, Is That Legal?, North Carolina law professor Eric Muller explains why he thinks Justice Anthony M. Kennedy’s concurrence in the Supreme Court decision about the Seattle and Louisville school systems isn’t as impenetrable as some find it. Kennedy wrote that Seattle “failed to explain why, in a district composed of a diversity of races, with fewer than half of the students categorized as ‘white,’ it has employed the crude categories of ‘white’ and ‘non-white’ as the basis for its assignment decisions.”

“Under Seattle’s plan, a school that was 40 percent white and 60 percent Asian would be just as ‘diverse’ as a school that was 40 percent white and 60 percent African-American. That’s nonsense,” Muller writes. “It appears that what Seattle was really after was not ‘diversity,’ but ensuring that no school would be excessively non-white.” Muller also writes:

A very significant percentage of the enrollment in Seattle’s high schools is neither white nor black. (Think about it: Seattle is a major city on the Pacific Rim; lots of folks in the Seattle schools are of Asian ancestry.) So it is very hard for me to take seriously the claim that the Seattle school district was seeking to achieve genuine “diversity” by making school assignment decisions with a “white/non-white” system of categorizing students.

Washington Post columnist E.J. Dionne isn’t so sanguine about the decision. Dionne wants the Democratic majority in the Senate to block any future judicial nominees — for the Supreme Court or for lower courts — unless President Bush engages in “serious consultation” with the Senate. Dionne writes:

And if conservatives claim to believe the president is owed deference on his court appointees, they will be — I choose this word deliberately — lying. In 2005 conservatives had no problem blocking Bush’s appointment of Harriet Miers because they could not count on her to be a strong voice for their legal causes. They revealed that their view of judicial battles is not about principle but power. When they went after Miers, conservatives lost the deference argument.

Chris Suellentrop