Race-Based Review

On December 4 the Supreme Court will hear oral arguments in two cases — one from Louisville and one from Seattle — that challenge the constitutionality of race-based student assignments in K-12 public schools. Since it is uncontested that the two school systems are engaging in racial discrimination, the legal issue is whether the use of race is “narrowly tailored” to a “compelling” interest. The Court should rule that there is no such compelling justification for the school systems’ racial balancing, for three reasons.

First, while the school boards assert that racially balanced student bodies yield educational and other societal benefits, the social-science data on which they rely are controversial and disputed. If the benefits are not certain, but only possible, then their value must be accordingly discounted.

If the social-science evidence put forward here is accepted as sufficient to establish a compelling interest, then rest assured it will be put forward to justify racial balancing in many other contexts (employment, housing, the makeup of various public boards, and jury selection, to name just a few). There are few government functions that cannot be described as rooted in some interest that seems “compelling,” and it will always be possible to find some social scientist who supports the notion that the consideration of race will improve that function. The State Board of Optometry (what is more precious than eyesight?) can insist on racially balanced appointments (can it be doubted that some survey will show that racial balance helps ensure greater sensitivity to the medical needs of this or that community?).

Acceptance of this controverted social-science evidence would also require the Court to revisit many of its earlier decisions. For instance, there is little doubt that social-science evidence could be adduced that a child is better off if the adoptive parents match his or her race. Likewise, there is social science that supports racial discrimination in teacher hiring because of the “role models” provided by teachers of this or that skin color. Indeed, there is — and was — social-science evidence that segregated settings provide educational benefits. But the Supreme Court has ruled against racial discrimination in all three contexts. As these examples also show, social-science data can be used to justify discrimination against individual members of groups that have already suffered historically from discrimination (as it already is in higher education against Asians and women).

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Race-Based Review
National Review