Inconsistent:

The Supreme Court begins the debate on affirmative action. Excerpt (from NPR's audio clip):

SCALIA: I don't know any other area where we decide the case by saying, "well, there are very few people who are being treated unconstitutionally." I mean if this indeed is unconstitutional treatment of this woman because of her race, surely it doesn't make any difference whether she is one of very few that have been treated unconstitutionally.

In other words, we should be vigilant about constitutional issues even when the percentages involved are small.

But what about last year's voucher decision? In the majority opinion (by Rehnquist, joined by Scalia, et al) we read (pdf):

The Establishment Clause question whether Ohio is coercing parents into sending their children to religious schools must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a scholarship and then choose a religious school. Cleveland’s preponderance of religiously affiliated schools did not result from the program, but is a phenomenon common to many American cities. Eighty-two percent of Cleveland’s private schools are religious, as are 81%of Ohio’s private schools. To attribute constitutional significance to the 82% figure would lead to the absurd result that a neutral school-choice program might be permissible in parts of Ohio where the percentage is lower, but not in Cleveland, where Ohio has deemed such programs most sorely needed. Likewise, an identical private choice program might be constitutional only in States with a lower percentage of religious private schools. Respondents' additional argument that constitutional significance should be attached to the fact that 96% of the scholarship recipients have enrolled in religious schools was flatly rejected in Mueller. The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school.

In other words, even if percentages approach 100% - turning a "choice" program into a virtual "mandatory religious" one - Scalia sees no reason to be perturbed.

posted by Quiddity at 4/01/2003 08:03:00 PM