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