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Slate's Jurisprudence: Affirmative Action in Schools


The Supreme Court still has several important cases to decide in the last days of this term. But we now know what one of the biggest decisions of the next term will be. Today, the justices agreed to hear two affirmative action cases involving public schools. And joining us to explain the significance of today's court action is Dahlia Lithwick. She's the legal analyst for the online magazine, Slate, and for us here at DAY TO DAY.

Hi, Dahlia.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate): Hey, Madeleine.

BRAND: Well, tell us about these two cases.

Ms. LITHWICK: Sure. One comes out of Seattle. The Seattle public school system essentially has a way of assigning students to high schools. Initially, the students pick their first choice. And then when they're allocated into the schools, one of the factors that's used, they call it a tie-breaking factor, in addition to how many - whether they have siblings at this school. One of the factors is race. So, the question is whether using race as a sort of tie-breaking factor in assigning kids to schools violates the Constitution.

The other one comes out of the Jefferson City school district in Kentucky, a district that actually was under orders to desegregate since the 1970s. They also continue to use race as a factor in allocating where students go to school, and the mother of a white son felt that her kid was discriminated against because he was white.

So, in a sense, we have school systems that are using race as a factor among myriad factors in determining where kids are assigned to school. The question is going to be, does that violate the Constitution?

BRAND: Now, I thought, mistakenly, apparently, that the affirmative action issue was pretty much settled three years ago with the University of Michigan law school decision. No?

Ms. LITHWICK: Well, you thought unmistakenly. But there's a sort of a legal problem and a political problem. The legal one is that you can distinguish those cases. They involved colleges in a law school. They involved systems of actual affirmative action. This is something slightly different.

But the political answer is, and it's the obvious one, that that happened when Sandra Day O'Connor was on the court. And particularly, the close 5-4 law school case in Michigan was entirely a function of Sandra Day O'Connor's view of the world and how it ought to be.

And so, pragmatically speaking, with her off the court and Sam Alito on the court, the question is, is all that scuttled? Do we start again? And I think that is really what's going on here. We may be now in a position to look at affirmative action entirely in a different way, because simply the composition of the court has changed.

BRAND: Well, is this then bad news for supporters of affirmative action?

Ms. LITHWICK: Well, we don't know. I mean, what we do know is the court has looked at these sets of cases six times before agreeing to grant cert, and that the court, when O'Connor sat on it in December, rejected a substantially similar case.

So it does look an awful lot as though, suddenly, we've got Alito on the court and these cases are interesting to look at again. Whether it's bad news or not I guess depends on how you feel about the sort of O'Connor test, which said, in effect, rigid quotas are bad in affirmative action context. But a sort of factor-squishy, you know, using race as one of many factors is okay.

I think a lot of people, even who support affirmative action, thought that was an awfully mushy test and hard to sort of pin down. So, I think all across the boards people may say we need some clarity here beyond just what O'Connor thought might make the world a better place.

BRAND: Thank you, Dahlia.

Ms. LITHWICK: My pleasure.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine, Slate, and for us here at DAY TO DAY. Transcript provided by NPR, Copyright NPR.