Following up on my earlier post focusing on the legal rule that emerges from the school race cases – and Justice Kennedy’s concurrence in particular – I think it is possible to make some preliminary judgment about the decision’s effects.
I start from the premise that Justice Kennedy’s concurrence states the controlling law on the points on which there is daylight between himself and the majority. His opinion is necessary to get to five votes on those issues, and his vote would be required in any case raising follow-up questions. So, as a formal matter, the Fourteenth Amendment does not forbid the consideration of race in the design of school systems. Schemes that do not classify on the basis of race (such as school placement based on neighborhood dynamics) are per se permissible, and there is substantial room to argue in favor of assignment programs that make race one factor among many others in a holistic assessment of the students.
So, progressives may be relatively sanguine about the decision. (And conservatives may be disappointed.) For liberals, it could have been – indeed, after argument, it was widely expected to be – much worse. Justice Kennedy has long expressed great distrust of the government’s use of race in its decision-making. There seemed every prospect that he would join in an opinion substantially limiting affirmative action and cabining the Grutter decision approving a limited form of affirmative action in admissions. Instead, five Justices today reaffirm the four corners of Grutter.
But what about the effect of today’s decision as a practical matter? Here, I think that the divergence between Chief Justice Roberts’ plurality opinion and the Kennedy concurrence substantially evaporates. Today’s decision allows school districts to further integration by placing schools and drawing attendance lines that bring together neighborhoods that are otherwise segregated based on racial housing patterns. But the effect of those measures will necessarily be limited: new construction is rare in proportion to the number of existing schools, which are often located squarely in the heart of existing non-diverse neighborhoods.
Justice Kennedy’s proposed alternative that schools consider race as one among many factors in admissions (a la Grutter) strikes me as impractical. K-12 school assignment is not comparable to the admissions process for college and graduate programs. For resource reasons at the very least, school districts must paint with a much broader brush. I am not aware of a non-magnet program in which school districts regularly consider individual criteria in assigning the thousands of students within their jurisdiction. (For younger students, there is also less to consider; your average third grader has a short CV.)
Lacking the resources that would be required to implement such a holistic approach honestly, it is most likely that school districts do one of two things. They may give up altogether on the effort to consider the race of individual students in placement. This is the probable result in most cases, and it produces as a practical matter the approach that the plurality today believes is required constitutionally (at least absent a compelling evidentiary showing). Alternatively, school administrators may engage in an “under the table†consideration of race, attempting to force the racial integration of schools without any express acknowledgment of the effort.
(One other potential irony bears mentioning briefly. Justice Kennedy’s opinion affirmatively encourages that the race-conscious drawing of school attendance lines on the ground that it does not involve an express racial classification. Of course, the Shaw v. Reno lines of cases (which was an innovation of the Court’s conservative majority) holds that when district lines appear to the citizenry to have been draw predominately based on race they amount to a classification subject to strict scrutiny and are presumptively unconstitutional.)
I also wanted finally to echo a jurisprudential point made below by Hans Bader. One of the points of lasting significance from today’s decision is going to have nothing to do with schools. The Court strongly suggests that affirmative action should be limited to remedying de jure – not de facto – discrimination. That distinction runs throughout all the opinions in the majority, and it will be the basis for many attacks on affirmative action programs that don’t rest on a record showing that they are a response to past purposeful discrimination.
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