Analysis: Schools’ race experiments may be doomed
on Dec 4, 2006 at 12:54 pm
If, as seems so, Justice Anthony M. Kennedy holds the decisive vote on the constitutionality of public schools’ use of race to promote integration, those experiments may well fail to pass muster in the Supreme Court. Kennedy, who three years ago had said he might accept the very limited use of race in the context of college and university admissions (although he dissented on the particular plan upheld by the Court then), on Monday emphatically resisted the notion that he should accept it in another arena — the K-12 public schools.
In order for public schools to try to reduce or eliminate “one-race” schools that largely reflect local housing patterns, they must be able to borrow from the college level the idea that the achievement of “racial diversity” in learning is constitutionally acceptable if based in part on race-based selection. That is the principle established by the Court in Grutter v. Bollinger in 2003. And, while Kennedy dissented on the particulars, he had not totally rejected the core principle. On Monday, however, he repeatedly stressed that, for him, Grutter was limited to higher education.
“That case is completely inapplicable” to the K-12 cases now before the Court, he said at one point as the Court heard the cases of Parents Involved in Community Schools v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915), involving the sometime use of race in picking which school a child may attend in a student-choice assignment plan. The Court, Kennedy, had never said that a school district that was not seeking toi end official segregation can “turn around and use an individual student’s race” in assigning that student to a school. He commented that the Court, in the Grutter decision, “went as far as it could away from” the principle that an individual’s race cannot be the determining factor in the education setting.
The outcome of the cases would depend on Kennedy if the other eight Justices were to divide evenly on the two plans. There was abundant evidence during the hearings that they would. The two newest members of the Court, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., were not as openly hostile to the plans as was Justice Antonin Scalia, but they were decidedly skeptical — especially Alito. Those three, if they voted together, would probably attract the vote of Justice Clarence Thomas, who said nothing during the two-hour argument.
Justice Stephen G. Breyer was the most fervent defender of public schools’ use of race to try to end the “racial isolation” that now is a feature of many urban school systems. But the other three Justices who, with Breyer and now retired Justice Sandray Day O’Connor, made a majority in the college decision in 2003, were also sympathetic to limited use of race this time, too. They were Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.
Kennedy has not taken the position, in the past, that race can never be used as a factor in deciding educational policy questions. To be allowed, however, he has insisted that it satisfy what he has called “rigorous judicial review, with strict scrutiny as the controlling standard.” If the Court does not closely check the use of race, he has added, then it forfeits the authority to permit race to be used even in a “modest, limited way.”
On Monday, he did not depart from that approach. He showed some sympathy for the ultimate educational objective of “reducing minority isolation” — that is, assuring that students do not attend schools dominated by their own race. At one point in an exchange with Solicitor General Paul D. Clement, Kennedy ridiculed this statement in the government’s brief: “School districts have an unquestioned interest in reducing minority isolation through race-neutral means.” He suggested that a period should have been placed after the word “isolation.”
Thus, it seemed, he was again saying he could assume a modest use of race for a valid social goal of racial understanding and harmony. But he also left no doubt that he thought the means chosen in the Seattle and Louisville school districts were problematic, at best. Kennedy told a lawyer for the Seattle school district, Michael F. Madden, that the Court had said in 2003 that “outright racial balancing” was “patently unconstitutional.” He asked: “Isn’t that what you have here?…You are choosinig each student by the color of their skin.”
During the argument on the Louisville assignment system, Kennedy seemed no more persuaded of its validity. And he made it even clearer than he was fretting about the larger implications of a ruling that would uphold either that plan or Seattle’s. While it may be that the school board in Kentucky had acted in “the utmost good faith,” Kennedy said, “the question is whether or not an insincere school board that wants to play the race card, or pursue a race-driven political advantage can make decisions based on an individual student’s race. That is what is involved here.”
Justice Stephen G. Breyer, in his sturdy defense of race as a means of assuring a racially diverse learning experience, relied on past statements in the Court’s opinions suggesting that the Constitution in seeking to make minority citizens full members of society had permitted the affirmative use of race as a means to that end. Breyer also warned Clement about the potential consequences of a ruling striking down the experiments that school districts are now making in the use of race.
“There is a terrific problem, with lots and lots of school districts becoming more and more segregated,” Breyer said. School officials, he said, are attempting to deal with that, but there is no easy way to do i. The issue, he indicated, should be left to them, not resolved in the courts.
