Commentary: A Fighting Chance for the Use of Race-Based Assignments

The following post is from Michael E. Rosman, General Counsel, Center for Individual Rights. CIR submitted an amicus brief in the Seattle schools case.

My initial comments relate to Chief Justice Roberts’s and Justice Kennedy’s opinion because (1) together they constitute the holding of the Court and (2) well, frankly, that is all I have been able to read so far.

Tom Goldstein’s comment is certainly correct. Justice Kennedy’s opinion is the controlling opinion for the Court to the extent he does not join the majority. But I think there is far less disagreement between these two opinions then a reading of Justice Kennedy’s opinion would suggest. A review of them also demonstrates that these cases simply had bad facts for the school districts. It is a testament to the skill of the lawyers defending those programs that they were able to win in the lower courts and obtain four votes in the Supreme Court.

1. A review of Justice Kennedy’s opinion would suggest that the Chief’s opinion had somehow rejected all uses of race by school districts for all purposes. I do not read the Chief’s opinion that way at all. Part III.B of the opinion, one of the parts that Kennedy refused to join, is just a narrow-tailoring analysis. The Court “need [not] resolve” debates about whether “racial diversity” effects marked improvements in test scores or other educational outcomes (Chief’s opinion at 17-18) because the racial guidelines in these cases are simply not tied to the increases in those educational outcomes; rather, they were tied to the demographics of the districts themselves. Thus, the Chief concludes on page 18, “[t]he plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits.” Justice Kennedy, in part II of his opinion, asserts that “[t]he plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling,” and he further suggests that it can be interpreted as precluding school districts from addressing true instances of racial isolation, and it is there that he departs company. But I do not see anything in Part III.B of the Chief’s opinion — and Justice Kennedy does not cite anything from there — which would support that view.

Part II of Justice Kennedy’s opinion also seems concerned that the Chief’s opinion might be read to preclude the use of non-explicit race-conscious measures — e.g., the drawing of district lines so as to achieve racial balance — but, again, I do not see where the Chief’s opinion says anything like that. To the contrary. The Chief distinguished a case from Illinois because it involved only a statute that “requir[ed] race-consciousness in drawing school attendance boundaries an issue well beyond the scope of the question presented in these cases.” (See page 31 of the Chief’s opinion.) Of course, these are quite difficult questions. Justice Kennedy suggests that such measures would not be subject to strict scrutiny, a proposition that is questionable under the Court’s precedents. (One would think that instituting a height minimum, based upon studies that Asian-Americans are shorter on the average, so as to reduce their number at a given school in which they were overrepresented, and thus achieve more racial diversity, would be subject to the same strict scrutiny as an outright racial preference. Perhaps it is more narrowly-tailored because it does not use explicit race assignments to students, but that is another question.) But the larger point is that neither opinion addresses non-explicit race-conscious measures, for the obvious reason that they were not before the Court.

In fact, Justice Kennedy cites only one explicit statement from the Chief’s opinion to which he seems to object, viz., the Chief’s assertion that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” But, of course, this is just rhetoric, specifically in response to the dissent, and was not a holding of any kind. Kennedy uses similar rhetoric in his response to the dissent. See p. 17 of his opinion: “The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward.” Indeed, Justice Kennedy’s opinion is not without its occasional rhetorical idiosyncracies (some might say excesses). See, e.g., his next sentence: “And if this is a frustrating duality of the Equal Protection Clause, it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it.” It is odd to deprive an opinion of full precedential value over a disagreement on rhetoric, but my initial reading of these opinions suggests that that is what happened here.

2. The opinions of the Chief and Kennedy both focus on the facts in the individual programs at issue. As they pointed out, neither program seemed focused on avoiding bad outcomes associated with racial isolation because there was not a great deal of racial isolation in these schools. Moreover, in both cases, the school districts divided their students into only two racial categories: white and non-white in Seattle, black and non-black in Jefferson County. This decision of the school boards, given the racial diversity of America today (and in Seattle in particular) seems almost anachronistic, and the Seattle schools apparently did not do a sufficiently good job of justifying it. (It was a bit more justified in Jefferson County, at least as a device of administrative convenience, because the vast majority of students were either black or white.)

Accordingly, whether school boards can address racial isolation — or otherwise manipulate the racial demographics of their schools, even with explicit racial measures, to avoid a racial mix for which they have good reason to believe is associated with bad educational outcomes — was simply not decided in these cases. Of course, school boards may not be willing to take their chances that their use of race will pass strict scrutiny under the Court’s analysis. But those who do still have a fighting chance and a road map of the pitfalls they must avoid.