One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’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.
Here is what is clear from Justice Kennedy’s opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race. Op. at 2 (rejecting the plurality’s failure to “acknowledge that the school districts have identified a compelling interest hereâ€); id. at 17 (“A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.â€).
Second, and relatedly, the Constitution does not require color-blindness. Op. at 7 (refusing to join the “parts of the opinion by The Chief Justice [that] imply an all-too-unyielding insistence that race cannot be a factorâ€); id. at 8 (acknowledging Justice Harlan’s dissenting view in Plessy that “[o]ur Constitution is color-blind,†but concluding that “it is regrettable to say, it cannot be a universal constitutional principleâ€).
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 (“[I]ndividual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.â€); id. at 10 (these programs are unconstitutional because “the schools could have achieved their stated ends through different meansâ€); id. at 16 (in the case of “de facto discrimination,†“[t]he State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present hereâ€); id. at 18 (“[M]easures other than differential treatment based on racial typing of individuals first must be exhausted.â€).
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. Schools may take account of race in such decisions as “site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.†Op. at 8. These are “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 race†(id.), as distinct from “[a]ssigning to each student a personal designation according to a crude system of individual racial classifications†(id. at 9). These approaches can be employed “with candor and with confidence that a constitutional violation does not occur.†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 “facially race-neutral means†discussed above but “if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component,†an “approach [that] would be informed by Grutter.†Op. at 10. Such a system would “consider[] race as only one factor among many,†whereas the Seattle program “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.†Id. at 12. “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.†Id. at 12-13. Justice Kennedy continues: “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.†Id. at 18. See also id. (rejecting “[c]rude measures of that sortâ€).
The ambiguity exists in Justice Kennedy’s statements that such approaches may be employed “if necessary†and that Grutter would have “some application.†The better view, I think, is that Justice Kennedy would still require as a “first option†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.
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