Over at SCOTUSblog, Tom Goldstein has a balanced take on today’s Supreme Court combined decision in Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education (Judge Roberts writes for the 5-4 majority).
From what I can glean from the excerpts I’ve read of Justice Kennedy’s concurrence, his opinion — representing the controlling vote (on Parts III-B and IV (?); Mark’s Rule is difficult to interpret here, after Grutter) — lays claim to a more “nuanced” view of the desirability of racial “diversity” that will serve to keep alive its use as a compelling interest in some narrow cases (despite, I should add, recent research that shows the use of “diversity” in social engineering schemes has had a decidedly unhealthy social impact).
This is, from my perspective, an unfortunate lean toward the liberal side of the bench, whose blistering dissents are filled with precisely the kind of emotionalism one expects from Justices fighting against what the Roberts wing clearly sees as a rather clear Constitutional issue.
And in fact, Kennedy, on at least two crucial points, breaks with the plurality: first, he denies that the Constitution demands a “color-blindness”; and second, he accepts the premise that there is, in fact, a governmental interest in school diversity, an opinion he bases on…what, precisely, I’m not sure.
Still, his concurrence may not give those hoping for a substantial degree of wiggle room on behalf of “diversity” initiatives the kind of play they believe — at least, if you accept Goldstein’s analysis:
One reading of todayÃ¢â‚¬â„¢s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice KennedyÃ¢â‚¬â„¢s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement.
— which, for my tastes, is too close to the language used by Powell in Bakke, a view later affirmed in Grutter and Gratz, thanks in large part to Justice O’Connor, who ruled as if she were trying to affect a social compromise rather than interpret the law.
Here is what is clear from Justice KennedyÃ¢â‚¬â„¢s opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race. Op. at 2 (rejecting the pluralityÃ¢â‚¬â„¢s failure to Ã¢â‚¬Å“acknowledge that the school districts have identified a compelling interest hereÃ¢â‚¬Â); id. at 17 (Ã¢â‚¬Å“A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.Ã¢â‚¬Â).
Second, and relatedly, the Constitution does not require color-blindness. Op. at 7 (refusing to join the Ã¢â‚¬Å“parts of the opinion by The Chief Justice [that] imply an all-too-unyielding insistence that race cannot be a factorÃ¢â‚¬Â); id. at 8 (acknowledging Justice HarlanÃ¢â‚¬â„¢s dissenting view in Plessy that Ã¢â‚¬Å“[o]ur Constitution is color-blind,Ã¢â‚¬Â but concluding that Ã¢â‚¬Å“it is regrettable to say, it cannot be a universal constitutional principleÃ¢â‚¬Â).
Again, I’m not sure why this “cannot be a universal constitutional principle,” legally speaking — unless it is Justice Kennedy’s position that the law, clearly interpreted, doesn’t enforce the “right” kind of social admixture, and could lead to a legal form of self-selected segregation.
I’m eager to read Thomas on this point, his being the most libertarian voice on the Court.
Third, direct racial classifications like those in the Seattle and Louisville programs are subject to strict scrutiny and may be employed only after other alternatives are first explored and have failed. Op. at 9 (Ã¢â‚¬Å“[I]ndividual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.Ã¢â‚¬Â); id. at 10 (these programs are unconstitutional because Ã¢â‚¬Å“the schools could have achieved their stated ends through different meansÃ¢â‚¬Â); id. at 16 (in the case of Ã¢â‚¬Å“de facto discrimination,Ã¢â‚¬Â Ã¢â‚¬Å“[t]he State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present hereÃ¢â‚¬Â); id. at 18 (Ã¢â‚¬Å“[M]easures other than differential treatment based on racial typing of individuals first must be exhausted.Ã¢â‚¬Â).
On these two points, Kennedy keeps his conditions (blissfully) narrow; still, by not siding with the plurality, he leaves the door open to clever arguments and institutional gambits that can (and most certainly will) be crafted to test the latitude of the restrictions. Too, should the Court swing back to a liberal majority, there is a good chance that the crack left open by Justice will be casually widened, until we’re right back to where we began after Bakke.
I may be wrong here, but this, it seems to me, is the tragedy of Kennedy’s concurrence.
Back to Goldstein, who shares some of my own concerns:
Fourth, and on the other hand, certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny review and are per se constitutional. […]
[…] Ã¢â‚¬Å“race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by raceÃ¢â‚¬Â (id.), as distinct from Ã¢â‚¬Å“[a]ssigning to each student a personal designation according to a crude system of individual racial classificationsÃ¢â‚¬Â (id. at 9). These approaches can be employed Ã¢â‚¬Å“with candor and with confidence that a constitutional violation does not occur.Ã¢â‚¬Â Id.
Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question.
Justice Kennedy thus states that schools may employ not only the Ã¢â‚¬Å“facially race-neutral meansÃ¢â‚¬Â discussed above but Ã¢â‚¬Å“if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component,Ã¢â‚¬Â an Ã¢â‚¬Å“approach [that] would be informed by Grutter.Ã¢â‚¬Â Op. at 10. Such a system would Ã¢â‚¬Å“consider race as only one factor among many,Ã¢â‚¬Â whereas the Seattle program Ã¢â‚¬Å“relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings; distance from schools; and race.Ã¢â‚¬Â Id. at 12. Ã¢â‚¬Å“If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application.Ã¢â‚¬Â Id. at 12-13. Justice Kennedy continues: Ã¢â‚¬Å“Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classifications.Ã¢â‚¬Â Id. at 18. See also id. (rejecting Ã¢â‚¬Å“[c]rude measures of that sortÃ¢â‚¬Â).
The ambiguity exists in Justice KennedyÃ¢â‚¬â„¢s statements that such approaches may be employed Ã¢â‚¬Å“if necessaryÃ¢â‚¬Â and that Grutter would have Ã¢â‚¬Å“some application.Ã¢â‚¬Â The better view, I think, is that Justice Kennedy would still require as a Ã¢â‚¬Å“first optionÃ¢â‚¬Â the various efforts at increasing diversity (such as school siting) that do not involve the express use of race as a factor in widespread school assignment. If those programs do not succeed or can be reliably shown to be unlikely to succeed standing alone, districts can consider race as one factor among many that look to students as individuals rather than just members of racial groups. Only if that effort fails may the government turn to programs like those in Seattle and Louisville.
Essentially, this is a “conservative” punt insofar as it refuses to decide the issue, but instead tries to have it both ways: race can only be one factor, and it must be a factor of last resort; still, race can remain a factor [Hans Bader echoes this concern] given that the Constitution does not demand color-blindness as a “universal principle” (Kennedy calls this “regrettable,” and I remain confused as to his thinking here, unless he is combining “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by raceÃ¢â‚¬Â with Ã¢â‚¬Å“[a]ssigning to each student a personal designation according to a crude system of individual racial classificationsÃ¢â‚¬Â — which, while “distinct,” is still nevertheless a question of “race,” and forcing a semantic rejection of the would-be “universal principle” of color blindness), and given that Kennedy asserts that the project of “diversity” is itself a compelling governmental interest.
Again, recent research seems to militate against such an assertion — and Peter Wood’s lengthy analysis of the “diversity” movement clearly shows, in my estimation, just how illiberal is the entire project, based, as it is, on a shallow and cosmetic view of diversity as superficial integration — a view that tracks more with the analogy of the crayon box than of the melting pot.
More: Lyle Denniston analyzes the thinking behind Justice Kennedy’s oft-seemingly third-way conservatism; Orin Kerr with an summary for Volokh, followed by an interesting discussion in the comments.
update: This bit from Bader’s piece bears highlighting, given that it shows how today’s ruling, thanks to Kennedy’s concurrence, muddies the legal waters a bit in some areas (while cleaning them up a bit in others):
The Supreme CourtÃ¢â‚¬â„¢s decision today makes clear its Croson line of cases only authorizes the use of race to remedy past intentional discrimination. The CourtÃ¢â‚¬â„¢s opinion describes its decisions as involving the Ã¢â‚¬Å“compelling interest in remedying the effects of past intentional discrimination.Ã¢â‚¬Â Similarly, the Chief JusticeÃ¢â‚¬â„¢s plurality opinion notes that Ã¢â‚¬Å“our precedents recognize the compelling interest in remedying past intentional discrimination,Ã¢â‚¬Â and Justice KennedyÃ¢â‚¬â„¢s concurrence describes the Croson line of cases as involving an interest in Ã¢â‚¬Å“remedying the effects of past intentional discrimination.Ã¢â‚¬Â
These statements wash away the foundations of cases like Stuart v. Roche that assume that Croson allows unintentional discrimination Ã¢â‚¬â€œ such as a mere prima facie case of disparate impact [ed – is that Powell again? I can’t remember] Ã¢â‚¬â€œ to support the use of race. That helps resolve a circuit split, and clarify the law outside the educational context.
But in the educational context itself, Justice Kennedy actually creates more confusion through his ambiguous concurrence.
Justice KennedyÃ¢â‚¬â„¢s concurrence recognized that the use of race in Seattle and Louisville did not remedy intentional discrimination, as thus was subject to tougher scrutiny than a remedial use of race would be, both in terms of whether a compelling interest in using race was demonstrated, and whether the use of race was narrowly tailored.
But his concurrence simultaneously opened the door to possible non-remedial use of race by some school systems in the future, suggesting that in a future case, race might be used in a more Ã¢â‚¬Å“nuancedÃ¢â‚¬Â way by a school system seeking to use race as one of many factors to promote a non-remedial goal like Ã¢â‚¬Å“diversityÃ¢â‚¬Â or preventing Ã¢â‚¬Å“racial isolation,Ã¢â‚¬Â if achieving those goals first proves impossible through race-neutral means.
Like I said. Punt.