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Tuesday, December 05, 2006

Court Reviews Race as Factor in School Plans - New York Times

Court Reviews Race as Factor in School Plans - New York Times: "December 5, 2006
December 5, 2006

Court Reviews Race as Factor in School Plans

WASHINGTON, Dec. 4 — By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional.

There seemed little prospect that either the Louisville, Ky., or Seattle plans would survive the hostile scrutiny of the court’s new majority. In each system, students are offered a choice of schools but can be denied admission based on their race if enrolling at a particular school would upset the racial balance.

At its most profound, the debate among the justices was over whether measures designed to maintain or achieve integration should be subjected to the same harsh scrutiny to which Brown v. Board of Education subjected the regime of official segregation. In the view of the conservative majority, the answer was yes.

While there is no reliable data on how common these plans are, they are thought to be widespread among school districts where residential patterns would otherwise produce neighborhood schools of one race or nearly so. Depending on how broadly the court rules, possibly hundreds of districts would need to modify or scrap voluntary integration plans.

The National School Boards Association as well as the Council of the Great City Schools, representing 66 urban districts, filed briefs on behalf of Seattle and Louisville, warning of impending disruption if the justices overturn the lower court rulings that upheld the two plans.

The Supreme Court had declined to review a similar voluntary integration plan in Massachusetts last year, shortly before the retirement of Justice Sandra Day O’Connor and the arrival of Justice Samuel A. Alito Jr. But in June, after weeks of internal debate, the justices accepted these two appeals.

One was filed by a white woman in Louisville whose son was denied a transfer to attend kindergarten in a school that needed black rather than white students in order to keep its black population at the district’s required minimum of 15 percent.

The other was filed by parents in Seattle who organized as a corporation to oppose the plan there, which applies only to the city’s 10 high schools. A racial “tiebreaker,” used when a high school attracts more students than there are places, intends to keep the schools within 15 percent of the district’s overall makeup, which is 60 percent nonwhite.

Before the arguments on Monday, the challenge for the school board lawyers defending the plans, along with their allies in the civil rights community, had appeared to be to persuade the justices that the appropriate analogy was not to affirmative action, a freighted subject for the court in which benefits are bestowed on one group and withheld from another, but rather to integration, in which the goal is to educate everyone as equally as possible.

But by the end of the tense two hours of argument, that effort had not so much failed as it had become irrelevant. Lawyers for the school systems found themselves struggling, under the justices’ questioning, to meet the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education.

For example, Michael F. Madden, the Seattle district’s lawyer, tried to argue that because the Seattle high schools were “basically comparable,” and “everyone gets a seat,” the court should not view the plan as “a selective or merit-based system where we adjudge one student to be better than the other.”

It was, Mr. Madden said, “a distributive system” that was “quite wholly dissimilar to a merit or selective-based system.”

Chief Justice John G. Roberts Jr. countered, “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 and not any other factor.”

He added: “I mean, everyone got a seat in Brown as well. But because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there’s no problem here because everybody gets a seat distinguishable?”

“Because segregation is harmful,” Mr. Madden replied.

“It’s an assignment on the basis of race, correct?” the chief justice persisted.

It was, Mr. Madden replied as his 30 minutes ran out and the red light came on, an effort “to bring students together in a mix that is not too far from their community.”

As the arguments proceeded, the court’s more liberal members appeared increasingly and visibly dispirited. Justice Ruth Bader Ginsburg tried unsuccessfully to turn the chief justice’s colloquy with Mr. Madden in a different direction. The question of whether “using racial integration is the same as segregation,” she said, was “pretty far from the kind of headlines that attended the Brown decision.”

Bringing “white and black children together on the same school bench,” Justice Ginsburg continued, “seems to be worlds apart from saying we’ll separate them.”

Justice Stephen G. Breyer let his frustration show in several exchanges with Solicitor General Paul D. Clement, who argued the Bush administration’s position as a “friend of the court” for the challengers and against the school systems in both cases.

“Think, go back to Cooper v. Aaron,” Justice Breyer told the solicitor general, referring during the argument in the Louisville case to the court’s 1958 decision enforcing a desegregation order in Little Rock, Ark. “Go back to the case where this court with paratroopers had to use tremendous means to get those children into the school. That’s because the society was divided.”

He continued: “Here we have a society, black and white, who elect school board members who together have voted to have this form of integration. Why, given that change in society, which is a good one, how can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the black children out of the school?”

“Well, I understand that, Justice Breyer,” Mr. Clement said. “But I think the answer to that is that the lesson of history in this area is that racial classifications are not ones where we should just let local school board officials do what they think is right.”

The Louisville plan, adopted in 2000 as the formerly segregated district emerged from 25 years of federal court supervision, provides that all schools should have a black student enrollment of no lower than 15 percent and no greater than 50 percent. The district as a whole, which includes suburban areas of Jefferson County as well as the city of Louisville, is about one-third black.

Mr. Clement said the 15-to-50-percent range was a “strict racial band” that was not sufficiently “narrowly tailored” to satisfy the “strict scrutiny” to which the court’s precedents subject government actions that are based on race. The administration’s position is that those choosing to adjust the racial balance in their schools should do so by “race-neutral means,” like magnet schools that attract children across racial lines.

“There’s a fundamental difference between whether or not the policy manages to avoid classifying people on the basis of their race,” the solicitor general said.

Justice David H. Souter asked Mr. Clement why this position was not just another way of saying that “the important thing is simply to hide the ball.” If improving the racial mix was the objective, Justice Souter asked, “why can’t they do that candidly?”

There were “several responses,” Mr. Clement answered. “One is that the Constitution puts a particular premium on avoiding express racial classifications.”

Justice Anthony M. Kennedy asked the lawyers a series of questions designed to test the outer reaches of their positions. Could a school district deliberately place a new school in a location designed to supply a racially mixed student body, he asked, and appeared displeased when Harry J. F. Korrell, the lawyer representing the parents challenging the Seattle plan, answered no.

While his questions suggested that he would not rule out any and all policies undertaken with a knowledge of the probable racial consequences, Justice Kennedy made clear his distaste for the policies at issue in these cases, Parents Involved in Community Schools v. Seattle School District, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.

To Mr. Madden, the Seattle district’s lawyer, Justice Kennedy said that unlike magnet schools, special resources, or school location decisions, “you’re characterizing each student by reason of the color of his or her skin.”

He continued: “That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.”

Sunday, December 03, 2006

Rumsfeld Memo on Iraq Proposed ‘Major’ Change - New York Times

Rumsfeld Memo on Iraq Proposed ‘Major’ Change - New York Times:
December 3, 2006

Rumsfeld Memo on Iraq Proposed ‘Major’ Change

WASHINGTON, Dec. 2 — Two days before he resigned as defense secretary, Donald H. Rumsfeld submitted a classified memo to the White House that acknowledged that the Bush administration’s strategy in Iraq was not working and called for a major course correction.

“In my view it is time for a major adjustment,” wrote Mr. Rumsfeld, who has been a symbol of a dogged stay-the-course policy. “Clearly, what U.S. forces are currently doing in Iraq is not working well enough or fast enough.”

Nor did Mr. Rumsfeld seem confident that the administration would readily develop an effective alternative. To limit the political fallout from shifting course, he suggested the administration consider a campaign to lower public expectations.

“Announce that whatever new approach the U.S. decides on, the U.S. is doing so on a trial basis,” he wrote. “This will give us the ability to readjust and move to another course, if necessary, and therefore not ‘lose.’ ”

“Recast the U.S. military mission and the U.S. goals (how we talk about them) — go minimalist,” he added. The memo suggests frustration with the pace of turning over responsibility to the Iraqi authorities; in fact, the memo calls for examination of ideas that roughly parallel troop withdrawal proposals presented by some of the White House’s sharpest Democratic critics. (Text of the Memo)

The memo’s discussion of possible troop reduction options offers a counterpoint to Mr. Rumsfeld’s frequent public suggestions that discussions about force levels are driven by requests from American military commanders.

It also puts on the table several ideas for troop redeployments or withdrawals, even as there have been recent pronouncements from American commanders emphasizing the need to maintain troop levels for the time being.

The memorandum sometimes has a finger-wagging tone, as Mr. Rumsfeld says that the Iraqis must “pull up their socks,” and suggests that reconstruction aid should be withheld in violent areas to avoid rewarding “bad behavior.”

Other options called for shrinking the number of bases, establishing benchmarks that would mark the Iraqis’ progress toward political, economic and security goals and conducting a “reverse embeds” program to attach Iraqi soldiers to American squads.

The memo was finished one day after President Bush interviewed Robert M. Gates, the president of Texas A&M University, as a potential successor to Mr. Rumsfeld and one day before the midterm elections. By then it was clear that the Republicans appeared likely to suffer a setback at the polls and that the administration was poised to begin reconsidering its Iraq strategy.

The memo provides no indication that Mr. Rumsfeld intended to leave his Pentagon post. It is unclear whether he knew at that point that he was about to be replaced, though the White House has said that Mr. Bush and Mr. Rumsfeld had a number of conversations on the matter.

Told that The New York Times had obtained a copy of it, a Pentagon spokesman, Eric Ruff, confirmed its authenticity. “As it became clear that people were considering options for the way forward, the secretary had some views on the subject, and this memo reflects those views,” he said.

At the Pentagon, Mr. Rumsfeld has been famous for his “snowflakes” — memos that drift down to the bureaucracy from on high and that are used to ask questions, stimulate debate and shape policy. Mr. Rumsfeld’s Nov. 6 memorandum, circulated as part of the administration’s review of Iraq policy, is written in that spirit and with the same blunt aphorisms that Mr. Rumsfeld frequently uses in public.

Unlike the lawyerly memo on Iraq policy submitted Nov. 8 by Stephen J. Hadley, the national security adviser, Mr. Rumsfeld’s listed more than a dozen “illustrative options” that the defense secretary did not endorse, but suggested merited serious consideration. “Many of these options could, and in a number of cases, should be done in combination with others,” Mr. Rumsfeld advised.

With Mr. Rumsfeld’s resignation, the options no longer have the same weight. In recent weeks, some have been discarded as the Bush administration tries to adjust its military and political strategy in Iraq. But others, like increasing the number of advisers attached to Iraqi forces, live on and have also been recommended by others.

Mr. Rumsfeld, who has presided over two wars and is one of the longest-serving Pentagon chiefs, is scheduled to leave when his designated successor, Mr. Gates, is confirmed by the Senate, expected later this month.

Titled “Iraq — Illustrative New Courses of Action,” the memo reflects mounting concern over a war that, as Mr. Rumsfeld put it, has evolved from “major combat operations to counterterrorism, to counterinsurgency, to dealing with death squads and sectarian violence.”

The first section of the memo contains two pages of options that Mr. Rumsfeld describes as “above the line” ideas worthy of consideration. Some that Mr. Rumsfeld found intriguing appear to reflect his long-held view that the United States should use relatively modest force in intervening in foreign countries to avoid creating a dependency on American power. That approach, critics have charged, left the United States unprepared to deal with the chaos that followed the ouster of Saddam Hussein.

Mr. Rumsfeld has frequently emphasized the difficulty of stabilizing Iraq and the need to turn over responsibility to Iraqi authorities as quickly as possible. But he has also been a forceful, even cantankerous, defender of American policy, often insisting his critics were unduly pessimistic. On Oct. 31, just a week before finishing the memo, Mr. Rumsfeld told a radio interviewer, “I feel that we are making good progress with the piece of it the Defense Department has.”

One option Mr. Rumsfeld offered calls for modest troop withdrawals “so Iraqis know they have to pull up their socks, step up and take responsibility for their country.”

Another option calls for redeploying American troops from “vulnerable positions” in Baghdad and other cities to safer areas in Iraq or Kuwait, where they would act as a “quick reaction force.” That idea is similar to a plan suggested by Representative John P. Murtha, a Pennsylvania Democrat, a plan that the White House has soundly rebuffed.

Still another option calls for consolidating the number of American bases in Iraq to 5 from 55 by July 2007, a considerable shrinking of the American footprint. At the same time, Mr. Rumsfeld all but dismisses the idea of setting a firm date for removing forces from Iraq, listing it as one of the less palatable ideas.

One of the more provocative options would punish provinces that failed to cooperate with the Americans by withdrawing economic assistance and security. “Stop rewarding bad behavior, as was done in Falluja when they pushed in reconstruction funds, and start rewarding good behavior,” the option reads. “No more reconstruction assistance in areas where there is violence.”

Some military officers have said that the idea of denying assistance in some areas ignores the fact that many Iraqis are afraid to cooperate with the Americans for fear of retaliation by insurgents.

Falluja has been the focus of reconstruction efforts following an offensive by Americans that crippled city services and damaged scores of buildings, leaving the United States few options beyond rebuilding or evacuating the city. Now, it is considered by the Marines to be one of the few relatively stable areas in the dangerous Anbar Province. Many of the other towns in the region have become even more hostile because the economic assistance has been minimal, leaving the residents feeling neglected by the authorities in Baghdad, military officers say.

Then, too, work on infrastructure that sprawls across the country, like the electrical grid and the oil pipelines, network, cannot be limited to nonviolent areas.

“There is an element of throwing in the towel and effectively giving up on at least some areas of the country,” said James Dobbins, a former State Department official and director of the International Security and Defense Policy Center at RAND.

In any case, administration officials indicated this week that withholding assistance was not under serious consideration.

Reflecting exasperation with much of the American government, another option in the memo raises the possibility of using military reservists to “beef up” the Iraqi government’s ministries. “Give up on trying to get other USG Departments to do it,” he writes, referring to other United States government agencies.

Taking a leaf out of Mr. Hussein’s book, Mr. Rumsfeld seemed to see some merit in the former dictator’s practice of paying Iraqi leaders. “Provide money to key political and religious leaders (as Saddam Hussein did), to get them to help us get through this difficult period,” one option reads.

The list of favored options notably does not mention the “clear, hold and build” approach that the White House has touted as its strategy for waging counterinsurgency. That is a troop-intensive approach that calls for clearing contested areas with American and Iraqi troops, holding them with American and Iraqi forces and then carrying out reconstruction programs to win support. Nor does the list make the withdrawal of American forces explicitly contingent on improving conditions in Iraq.

The final page of the memo is a brief list of six “less attractive” options, which Mr. Rumsfeld describes as “below the line.” They include an “aggressive federalism plan,” an international conference modeled on the Dayton accords that produced an agreement on Bosnia and an idea that is currently being seriously discussed by senior administration officials: temporarily sending 20,000 additional American forces or more to Baghdad to try to improve security there and regain momentum.

Moving a large fraction of American forces to Baghdad to “attempt to control it,” Mr. Rumsfeld writes without further elaboration, would be “below the line.”

Defense Official to Resign

WASHINGTON, Dec. 2 (Agence France-Presse) — The Defense Department’s top intelligence official will resign at the end of the year, the Pentagon has announced.

Stephen A. Cambone, under secretary of defense for intelligence, is the most senior Pentagon official to announce he is leaving since Mr. Rumsfeld tendered his resignation last month. Mr. Cambone is one of the last members of the original team that came to the Pentagon with Mr. Rumsfeld in January 2001.

Mr. Cambone has been a key player in Mr. Rumsfeld’s efforts to transform the military into a lighter, high-tech force, and in carving out a larger role for American military intelligence.

The Defense Department expanded espionage and other covert intelligence gathering activities under Mr. Cambone, drawing criticism from some members of Congress that the department was intruding on turf traditionally dominated by the C.I.A.

James Glanz contributed reporting from Baghdad.