The confirmation hearings of Judge Sonia Sotomayor veered into questions of diversity in education again this morning. For the second time, the Supreme Court nominee gave a lesson about the 2003 University of Michigan cases on using race in admissions.
But curiously, neither Sotomayor nor the senator who raised the question today, Benjamin L. Cardin, D-Md., bring up the Supreme Court’s more recent pronouncement on race and diversity in education: the bitter 5-4 decision in the Seattle and Louisville student-assignment cases in which the court sharply curtailed the permissible uses of race in K-12 education.
Sen. Cardin, noting that Sotomayor had fought for diversity issues as a student at Princeton University, said he wanted to “hear the importance from you of having different voices in schools.”
Sotomayor, after acknowledging the value to society of seeing people of diverse backgrounds on the judcicial bench, then again recapped the Supreme Court’s decisions in Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the court upheld a race-conscious admissions policy at Michigan’s law school because it included individualized consideration of each applicant. But the court struck down a more mechanized race-conscious admissions plan for the university’s main undergraduate school.
And she noted, as she had on Tuesday (see my blog post here), Justice Sandra Day O’Connor’s hope expressed in Grutter that 25 years from then, the use of racial preferences would no longer be necessary in education.
“These situations are always looked at individually,” Sotomayor said.
But this probably would have been a good point to bring up the court’s later decision in Parents Involved in Community Schools v. Seattle School District, an opinion authored by Chief Justice John G. Roberts Jr. The decision was widely viewed as a major reversal of course on race in education, led by Roberts and his fellow new justice, Samuel A. Alito Jr. In opening statements, several Democrats on the Judiciary Committee mentioned or alluded to the Seattle decision as an example of an area of the law where they were hoodwinked by Roberts and Alito.
Meanwhile, Sen. Cardin also asked Sotomayor about a case in which, as Education Week’s Erik Robelen described it, the judge wrote a partial dissent from two fellow judges in a case alleging racial discrimination involving a black student in a Connecticut elementary school.
In Gant v. Wallingford Board of Education, Sotomayor had agreed with her 2nd Circuit panel’s rejection of a claim that the school had acted with “deliberate indifference” to racial hostility the student allegedly encountered at school, but she contended in her dissent that the student’s family had grounds for proceeding with a claim that their son’s midyear demotion from 1st grade to kindergarten was driven by race.
“I consider the treatment this lone black child encountered during his brief time in Cook Hill’s first grade to have been ... unprecedented and contrary to the school’s established policies,” Judge Sotomayor said in the dissent.
Cardin today lauded her for the dissent, saying, “If you ignore race completely, you’re ignoring an important element.”
In response, Sotomayor said: “In that case, there was a disparate treatment element, and I pointed out to the set of facts that showed or presented evidence of that disparate treatment. That’s the quote that you were reading from, that this was a sole child who was treated completely different than other children of -- of a different race in the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help.
“That is obviously different, because what you’re looking at is the law as it exists and the promise that the law makes to every citizen of equal treatment in that situation,” she added.
One final note about Sen. Cardin’s exchange. Before bringing up the Gant case, Cardin told Sotomayor that he wants a justice “who will continue to move the court forward in protecting … important civil rights.”
He then cited some well-known cases of people who suffered violence because of bias based on sexual orientation or race.
“I [want] a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay,” Cardin said. “I want a justice who will fight for women like a 28-year-old Californian who was gang raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black. So we need to continue that -- that focus.”
Sotomayor didn’t really have a chance to respond to those specific cases, as Cardin then raised the Gant case.
A version of this news article first appeared in The School Law Blog.