Parents Involved in CommunitySchools v. Seattle School Dist. No. 1                 Civil Rights, 2010               Moritz...
Share Your Conversations!   Conversations Across Paradigms
What is this?The Answer depends on your Paradigm
In the sciences, therefore, if perceptual switches accompany paradigm changes,we may not expect scientists to attest to th...
Takeaway: There is no way to persuade someone of one paradigm over  another. There is nothing to appeal to, no facts to  ...
Gestalt Shifts: Which way is the dancing girl spinning? (click link                              below)             http:/...
Cross-Paradigm Example: How do youDefine Racism? Is voting for someone because of their race racist?   What if that pers...
Definitions of Racism Colorblind Definition: any action or differential treatment  based on any racial characteristic und...
How do you Define Racism?As far as my understanding of racism, it’s usually a belief that one’s own race   is superior, an...
Thinking Like a Lawyer      The test of a first-rate intelligence is the ability to hold two      opposed ideas in mind at...
Parents Involved In Community Schools v.      Seattle School Dist. No 1 (PICS) (2007)  Seattle assigned students to overs...
Parents Involved In Community Schools v.Seattle School Dist. No 1 (2007) Parents of non-minority students sued the Seattl...
Levels of Scrutiny      Rational basis test - rationally related to legitimate interest       everything else      Inter...
Racial Classifications      All racial classifications are analyzed by a       reviewing court under strict scrutiny.    ...
“Benign” Classifications --     Affirmative Action      There was much dispute about the level of review that       shoul...
Under Strict Scrutiny, What Interests     are Compelling?     The Court has found only two interests compelling:     1) Re...
Narrow Tailoring         The tailoring that is required will depend upon the          interest asserted. In Grutter, the ...
Grutter and Gratz18
Changing Composition of the Court: JusticeKennedy is the Critical Vote 19
Parents Involved in Community Schools v.Seattle School Dist. No. 1 (2007) Court held that the plans at issue were not nar...
Conservative Paradigm Neutrality Objectivity Formalist“Judges are like umpires. Umpires dont make the rules; they apply...
“The purpose of the Equal Protection Clause is to ensure that people are treated as      individuals rather than on the co...
Natural                    Racial imbalance (in schools) can result from any                    number of innocent private...
J. Kennedy, Concurring                    That the school districts consider these plans to be necessary                  ...
Justice Kennedy, Concurring “If school authorities are concerned that the student-body compositions of certain schools int...
Two Views of        Equal Protection Clause Atomistic                                        Systemic The problem: bad ...
“Reconstitive Constitutionalism” What are the elements of it?   Situated   Contextual
“It seems to me that there is a terrible problem in the                        country. The problem is that there are lots...
The Constitution wanted, as they said in the                   Slaughterhouse cases, to take people who had formerly      ...
Massive Resistance and Neutral     Princples      Wechler’s Neutral Principles        Brown was concerned with the harm ...
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Parents Involved in Community Schools v. Seattle School Dist. No. 1

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Parents Involved in Community Schools v. Seattle School Dist. No. 1

  1. 1. Parents Involved in CommunitySchools v. Seattle School Dist. No. 1 Civil Rights, 2010 Moritz College of Law, The Ohio State University Guest Lecturer: Stephen Menendian, J.D.
  2. 2. Share Your Conversations! Conversations Across Paradigms
  3. 3. What is this?The Answer depends on your Paradigm
  4. 4. In the sciences, therefore, if perceptual switches accompany paradigm changes,we may not expect scientists to attest to these changes directly. Looking at themoon, the convert to Copernicanism does not say,“I used to see a planet, butnow I see a satellite. That locution would imply a sense in which the ’Ptolemaic system had once been correct. Instead, a convert to the newastronomy says,“I once took the moon to be (or saw the moon as) a planet, butI was mistaken.” That sort of statement does recur in the aftermath of scientificrevolutions. If it ordinarily disguises a shift of scientific vision or some othermental transformation with the same effect, we may not expect direct testimonyabout the shift. Rather we must look for indirect and behavioral evidencethat the scientist with a new paradigm sees differently from the way he hadseen before.--Thomas Kuhn, the Structure of Scientific Revolutions, p. 115.
  5. 5. Takeaway: There is no way to persuade someone of one paradigm over another. There is nothing to appeal to, no facts to controvert, no statistics to cite. Paradigms are only changed through radical subversion: a gestalt shift.
  6. 6. Gestalt Shifts: Which way is the dancing girl spinning? (click link below) http://www.bigsoft.co.uk/blog/index.php/2008/0 4/25/dancing-girl-optical-illusion
  7. 7. Cross-Paradigm Example: How do youDefine Racism? Is voting for someone because of their race racist?  What if that person grew up under Jim Crow? Is affirmative action racist? Is dating only people of a certain race racist?
  8. 8. Definitions of Racism Colorblind Definition: any action or differential treatment based on any racial characteristic under any circumstance Discrimination: (1)( a): the act of discriminating (b): the process by which two stimuli differing in some aspect are responded to differently (2): the quality or power of finely distinguishing (1) and (2) would seem to confirm the colorblind definition of racism. Discrimination is simply distinguishing between two stimuli. Racial discrimination, it would seem, would be distinguishing between things on the basis of race.
  9. 9. How do you Define Racism?As far as my understanding of racism, it’s usually a belief that one’s own race is superior, and responding to other races with domination/fear/hatred/subjugation. So, how is attraction to a particular race, well, racism? This idea of attraction is not laced with domination, subjugation, fear and hatred of other races.As a bi-racial female, I’m attracted to Caucasian males, but this attraction to white males does not make me hate, fear or want to dominate other races, they just don’t do it for me most of the time…? I’ve dated Hispanics, Asians, and African Americas, but my base attraction is towards white males. So again I ask, where does racism step in? I don’t hate black men, and if I were single and a black guy showed interest in me and there was chemistry, hell yeah I’d have no problem dating him. But because my preference is towards white guys that’s…racist? How? - Online Comment, Newsweek Forums
  10. 10. Thinking Like a Lawyer The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function. F. Scott Fitzgerald10
  11. 11. Parents Involved In Community Schools v. Seattle School Dist. No 1 (PICS) (2007)  Seattle assigned students to oversubscribed schools on the basis of a series of tiebreakers. 1. sibling attendance. 2. Racial imbalance – 15% plus/minus from racial makeup of school system as a whole. 3. School distance.  Louisville/Jefferson County: racial guideline required each school to seek black enrollment of at least 15% and no more than 50%.11
  12. 12. Parents Involved In Community Schools v.Seattle School Dist. No 1 (2007) Parents of non-minority students sued the Seattle and Jefferson County school districts, claiming that the student assignment plans denied their children the equal protection of law under the 14th Amendment to the US Constitution. Standard of Review?
  13. 13. Levels of Scrutiny  Rational basis test - rationally related to legitimate interest everything else  Intermediate scrutiny- substantially related to important interest gender & illegitimacy  Strict scrutiny - narrowly tailored to compelling interest race & national origin13
  14. 14. Racial Classifications  All racial classifications are analyzed by a reviewing court under strict scrutiny.  Such classifications are constitutional only if  narrowly tailored  further compelling governmental interests.14
  15. 15. “Benign” Classifications -- Affirmative Action  There was much dispute about the level of review that should apply to instances in which a classification was made to help minorities.  This debate ended in 1995 when a majority of the court decided that “benign” or “remedial” classifications raise strict scrutiny review.  “Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial.’” Croson15
  16. 16. Under Strict Scrutiny, What Interests are Compelling? The Court has found only two interests compelling: 1) Remediating De Jure Segregation (i.e. Brown) 2) Viewpoint Diversity in Higher Education (Bakke, Grutter) The Court rejected remedying societal discrimination as a compelling interest.16
  17. 17. Narrow Tailoring  The tailoring that is required will depend upon the interest asserted. In Grutter, the following were elements of narrow tailoring: 1. Individualized, Holistic Consideration of Applicants 2. Absence of Quotas 3. Consideration of Race-Neutral Alternatives 4. Undue Harm 5. Limited in Time17
  18. 18. Grutter and Gratz18
  19. 19. Changing Composition of the Court: JusticeKennedy is the Critical Vote 19
  20. 20. Parents Involved in Community Schools v.Seattle School Dist. No. 1 (2007) Court held that the plans at issue were not narrowly tailored.  The use of the racial tiebreaker within a particular +/- range was unconstitutional. Court affirmed that 1. maintaining racially diverse schools and 2. preventing the harm racially isolation are compelling government interests
  21. 21. Conservative Paradigm Neutrality Objectivity Formalist“Judges are like umpires. Umpires dont make the rules; they apply them. The role of an umpire and a judge is critical.They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”-John Roberts (2005)
  22. 22. “The purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than on the color of their skin. So saying that this doesn’t involve individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color.” “I thought that was one of the absolute restrictions, that you cannot judge and classify people on the basis of race. You can pursue objectives that your school board is pursuing, but at some point you come against an absolute, and aren’t you just denying that?”22
  23. 23. Natural Racial imbalance (in schools) can result from any number of innocent private decisions, including voluntary housing choices. Individuals schools fall in and out of balance in the natural course, and the appropriate balance will shift with a school district’s changing demographics. Justice Thomas, Concurring, Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007)
  24. 24. J. Kennedy, Concurring That the school districts consider these plans to be necessary should remind us that our highest aspirations are yet unfulfilled. School districts can seek to reach Brown’s objective of equal educational opportunity. But the solutions mandated by these school districts must themselves be lawful. In my view, the state-mandated racial classifications at issue, official labelsproclaiming the race of all persons in a broad class of citizens – elementary school students in one case, high school students in another – are unconstitutional as the cases now come to us.
  25. 25. Justice Kennedy, Concurring “If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race- conscious measures to address the problem in a general way without treating each student in a different fashion soley on the basis of systematic, individual typing by race.School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of the neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and otherstatistics by race. These mechanisms are race-conscious but do not lead to different treatment based on a classifications that tells each student he or she is to be defined by race.25
  26. 26. Two Views of Equal Protection Clause Atomistic  Systemic The problem: bad apples  The problem: poisonous tree  Anti-subordination as the goal Colorblindness as the goal 26
  27. 27. “Reconstitive Constitutionalism” What are the elements of it?  Situated  Contextual
  28. 28. “It seems to me that there is a terrible problem in the country. The problem is that there are lots and lots of school districts that are becoming more and more segregated in fact, and that school boards all over are struggling with this problem.” “It seems to me you’re saying you can’t make an omelet without breaking eggs. Can you think of an area of the law in which we say whatever it takes, so long as there is a real need?” Justice Scalia28
  29. 29. The Constitution wanted, as they said in the Slaughterhouse cases, to take people who had formerly been slaves and their children and make them full members of American society. And part of that was that the State couldn’t insist that they go to separate schools.JusticeBreyer How could the Constitution which says that this is intolerable, that segregated school, and insist that school boards take the black and white children and integrate them…How could the Constitution the day that that decree is removed tell the school board it cannot make that effort anymore, it can’t do what its been doing, and we’ll send the children back to their black schools and their white schools?29
  30. 30. Massive Resistance and Neutral Princples  Wechler’s Neutral Principles  Brown was concerned with the harm of group subordination: condemned segregation as a practice by which a group with political power denied equality to a group lacking it  Under this view, Wechsler argued that Brown could not be grounded in neutral principles.  “If the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugant”30

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