Who is harmed by race-conscious assignment?
emaltz at camden.rutgers.edu
Mon Mar 5 10:24:58 PST 2007
The problem with the question is that it focuses on racial groups rather
than individuals. While white students as a group may not suffer from any
disadvantage, an individual white student might still be denied access to
the school of his choice although he would be granted his wish if he was
not white. Thus, he has suffered a disadvantage because of his race.
The question of whether such discrimination is unconstitutional is, of
course, entirely different.
At 12:58 PM 3/5/2007 -0500, Patrick Wiseman wrote:
>I was talking in class the other day about the student assignment cases
>from Seattle and Jefferson County, KY, and a student asked a good
>question: who is denied equal protection if _all_ students are subject to
>being assigned to a school based on their race? (It may be that the
>details of the programs are such that there are students who can claim to
>be disadvantaged by their race, but I want to put that aside for the
>As I thought more about the question, it occurred to me that explicit
>racial classifications now get strict scrutiny regardless of whether
>anyone is put at a disadvantage by the classification. (I'm _not_
>speaking here of the difference between invidious and benign
>classifications.) Since _Loving v. VA_, in which the state argued
>"symmetry" between the races, the Court has subjected all explicit
>legislative mentions of race to strict scrutiny. But VA's argument was
>bogus, the "symmetry" was false - the classification put uni-racial
>couples on one side of a line (they could marry) and bi-racial couples on
>the other (they could not).
>But there's a _true_ symmetry in the student assignment cases. _All_
>students, regardless of race, are subject to being assigned to school on
>the basis of race. No-one is more or less disadvantaged.
>(I'm also puzzled by the notion that Jefferson County is one day
>constitutionally _required_ to take race into account, and the next, after
>the school system is declared "unitary," constitutionally _proscribed_
>from taking race into account, but that's another matter.)
>I'd be interested in reactions.
>Professor of Law
>GSU College of Law
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