Does racial busing voluntarily chosen by a school district violate the 14th Amendment?

Is it true, as the Supreme Court held yesterday, that racial busing and other race-conscious devices used to assure a desired racial mix in the schools within a school district violate the 14th Amendment? Please note: when I speak of the 14th amendment, I am not speaking of the unconstitutionally hypertrophied 14th amendment of the last 80 years, which forces a regime of non-discrimination on every nook and cranny of America, but the 14th amendment as originally and properly understood, which did allow certain types of racial discrimination, such as school segregation. Four years ago I asked myself the same question regarding the University of Michigan’s use of race preferences in its admissions procedures, and I determined that while old-fashioned “separate but equal” school segregation did not violate the 14th Amendment, the use of different admissions criteria for the admission of different races to the same school, did. The linked article explains my reasoning.

Where does that leave us on race-conscious plans assuring diversity in public schools, where it is not a matter of rejecting people entirely on the basis of race, but rather of excluding them from one school that they want to go to, and making them attend another school that they prefer not to go to? On one hand, school busing seems more similar to “separate but equal”-type discrimination (which, again, I believe is allowed under a proper understanding of the 14th amendment), since no one is being deprived of the fundamental right of an education. On the other hand, school busing seems more like racial preferences in admissions (which I believe is not allowed under a proper understanding of the 14th amendment), since pupils are being closed out of the schools they prefer, or the schools that are closer to their homes, purely on the basis of race. At the moment I’m leaning toward saying that busing does not violate the original and proper meaning of the 14th amendment, but I’m not sure. The issue has not come into focus in my mind yet. However, the reasoning used in my 2003 article is a start.

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Howard Sutherland writes:

I think the busing program struck down in Seattle does violate the equal protection clause, both on a traditional understanding of the 14th Amendment and applying it as the Supreme Court did in Brown. Certainly I think that’s true if one applies Clark Coleman’s test, which I like as a practical check on original intent interpretation—even though I am sympathetic to originalism.

The way to look at it is at the level of the people affected. Here the right level is that of neighborhood children. As I understand the Seattle fact pattern, children were being denied admission to local schools and being bused to more distant schools, in order to create or maintain a racial balance of some kind within public schools. The decisive factor, for each affected child, was race. In this case, presumably, white children were bused to more distant schools while black and other non-white children were able to stay in their local schools. Even if the schools in question are equal in educational provision and facilities, are the affected children enjoying equal treatment under the law? I would say no, and in a way even the pre-Brown understanding of the equal protection clause would not have permitted.

Mr. Auster defends the separate-but-equal framework the Court articulated in Plessy. I think there is a credible argument that—under an original intent review, even one filtered through the Coleman test—Plessy’s result was a permissible application of the equal protection clause; provided the “equal” in separate-but-equal really means what it says. John W. Davis actually made such an argument elegantly and eloquently when he argued the Brown case for the school district respondents. It didn’t work, but by that time the Warren Court was more interested in psychology than law.

In Seattle, one could argue that because both white children and black might be required to be bused for racial balancing, and children of both races might be inconvenienced, there is no equal protection violation. That’s looking at the wrong level. The right level is the denial of children’s ability to attend their local schools. In Seattle, some children were allowed to go to their neighborhood school, while others were compelled to spend up to four hours a day being hauled to and from schools away from their neighborhoods, and the reason for the disparate treatment was race. Even if one accepts a compelling government interest in racial balancing (which I don’t), the inconvenience imposed on the children forced into busing is too great to accept. Under the Brown test, at least as written, the case is a no-brainer. Even under the Plessy test, the government-imposed disparity in treatment is too great to survive a separate-but-equal analysis. HRS

LA replies:

I’m intrigued by Mr. Sutherland’s argument that the inequal treatment involved in requiring some pupils but not others to travel long distances to and from school would violate the 14th Amendment under its original meaning. I’m not at all persuaded that it violates Brown. The basis of Brown is that it is wrong to separate black children from whites, because it makes blacks feel inferior. There is no question of inferiority in Seattle, since the purpose is a diversity of all races, not the exclusion of an unwanted race.

LA continues:

I do not have a sufficient background in the past busing decisions to have an intelligent overall opinion on this case. I have familiarity with the affirmative actions decisions like Bakke and Grutter, relating to the use of racial preferences to increase minority admissions, but not with the busing cases, relating to the use of busing and other methods to achieve racially mixed schools, and I’m going to have to do some reading in this area. I’m not sure in what sense the two areas are the same, and in what sense they are different.

What I particularly want to know is this:

When and now did the Brown principle—i.e., local laws mandating racial separation in schools are not allowed—change to the positive requirement that schools be integrated, even in the absence of legally mandated segregation? How in the world could “de facto housing segregation” be made into a racial injustice—even a violation of the 14th Amendment!—that had to be overcome by federal courts telling communities that they had to bus their children to distant schools? I haven’t read the decisions, but I assume that they must be among the wackiest decisions of the wacky Warren era, in which whatever the justices desired, was declared to be what the Constitution requires. I’ll bet some of the key decisions in this area were written by Brennan, as such pure assertion of egalitarian preferences as the supreme law of the land was his specialty.

Now, ironically, Seattle is the extreme opposite of those decisions. Forty years ago, federal courts told counties that they HAD to bus their children to achieve racial integration. Today, the Supreme Court tells counties that they CANNOT bus their children to achieve racial integration, even if they WANT to.

Posted by Lawrence Auster at June 29, 2007 09:08 PM | Send