Document Type

Article

Publication Date

2007

Publication Information

LXXI The Cresset 54 (Advent/Christmas 2007)

Abstract

From the perspective of constitutional doctrine, the PICS case is not particularly novel. The central rule of the plurality opinion-that state or local government use of visible racial classifications must survive the courts' "strict scrutiny" even if that use is "benign" and for the benefit of minorities-has been firmly in place at least since City of Richmond v. J.A. Croson Company (1989). Similarly, the PICS plurality followed longstanding case law holding that under the "strict scrutiny" test, the state must show a "compelling interest" when it uses racial preferences and that remedying past racial discrimination and diversity in higher education are adequate compelling interests.

However, Croson and subsequent affirmative action cases show that, constitutionally, the devil is in the details. Starting with Croson, the Court effectively has held that, except for Congress (perhaps), government units can only remedy the discrimination that they themselves have caused or participated in. Thus, a school board cannot use racial assignments to remedy ongoing racial inequality caused by historical segregated housing patterns or discriminatory employment practices. Only those school boards that intentionally segregated their students by race and then never came into compliance with Brown can do so. Once a school district has complied with Brown by dismantling its segregated system, as most districts have now done, it can rarely if ever use past discrimination as a reason to assign children to public schools based on race, even if the schools have become completely re-segregated. Because of this rule, the Court essentially has accepted that minorities who start from unequal places in education, employment, and other opportunities because of the legacy of racial discrimination will never have a legal remedy.

Download

Share

COinS