Justice Kennedy refused to join two parts of Chief Justice Roberts’ opinion. One of the parts consists of Roberts’ take-down of Justice Breyer’s dissent. There, Roberts (for the plurality) shows how Breyer “selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies [the] well-established legal framework for assessing equal protection challenges to express racial classifications and greatly exaggerates the consequences of today’s decision.” It’s hard-hitting stuff, prompted by Breyer’s over-the-top attack on Roberts’ opinion, and it’s not surprising that the “above-the-fray” Kennedy didn’t want to sign on. However, Kennedy’s concurrence recognizes the same problems with Breyer’s opinion that Roberts details. As Kennedy phrases it:
Justice Breyer’s dissenting opinion rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles.
The real significance of Kennedy’s concurrence rests in its refusal to join the portion of the Roberts opinion in which the Chief Justice explains for the plurality why the race-based school assignments employed in these cases are not justified by the claimed educational benefits of reducing racial concentration in schools and of ensuring a racially integrated environment. Kennedy does not disagree with this conclusion on the facts of this case. Indeed, Kennedy makes it clear that such a rationale cannot constitute a defense of either the Seattle plan or the Kentucky plan. And the reason he articulates for this view is essentially the same one presented by Roberts — the school districts can’t explain how the plans they adopted promote the alleged benefits of diverse school enrollment and prevent racial isolation.
What then is Kennedy’s beef with this portion of the Roberts opinion? The answer isn’t completely clear. Certainly, Kennedy doesn’t like Roberts’ tone. He considers it too simplistic to say, as Roberts does, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” [Note: this statement does not appear in that portion of the opinion] But this is just rhetoric, however excellent. Without more than this objection, one would have to say that there’s less to Kennedy’s concurrence than meets the eye.
At the substantive level, Kennedy objects that “the 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.” But I don’t find anything in the plurality opinion that supports this concern. The portion of the plurality opinion in question stands for the proposition that race-based school assignments can’t be justified by the mere fact that a school system is producing schools at which the racial composition fails to reflect the overall racial composition of the district as a whole. It takes no position that I can detect on whether such assignments can be used to prevent racial imbalances severe enough to affect the quality of education, as opposed to imbalances that offend only the concept of proportional representation. In this respect, the Chief Justice has been true to his stated philosophy of deciding only those questions presented by the case at hand.
Kennedy, by contrast, seems perverse because (1) he won’t take a position on the core proposition the plurality opinion discusses — that lack of proportional representation does not equal lack of the kind of diversity that may promote education, (2) he wants to reach, and answer in the affirmative, the question not squarely presented by the case or decided by the plurality opinion — whether race-based assignments may be used by public K-12 schools to correct imbalances that affect educational quality, but (3) he doesn’t provide much guidance as to the circumstances under which race-based assignments may be used for that purpose.
As to the third point, Kennedy is clear that race-based assignments must be a last resort. He invites “those entrusted with directing our public schools [to] bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to. . .bring together students of different racial, ethnic, and economic backgrounds. . .without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.” (emphasis added). And he touts such creative solutions as “strategic site selection of new schools; drawing attendance zones with general recognition of the demographcis of neighborhooods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.”
The potential mischief associated with Kennedy’s invitation could keep bureaucrats, lawyers, and courts busy for the next 25 years (in fairness, though, even if Kennedy had joined completely with Roberts, all uncertainty on this issue would not have been removed). Indeed, Kennedy’s invitation is reminiscent (at least in form) of the one issued by Justice Powell in another 4-1-4 reverse racial discrimination in education case — Bakke v. Regents of the University of California (1978).
Perhaps K-12 schools will be less inclined to accept the invitation than colleges and universities were. First, the people who run them don’t reside in an ivory tower; they live in the community and lack insulation from the political process. Second, as Tom Goldstein has pointed out, it’s not easy for public school administrators to engage in a “holistic” analysis of K-12 students, especially very young ones. But then, college administrators didn’t always engage in such analysis of their applicants after Bakke; often they just pretended to. It’s likely that some public school systems, though perhaps not many, will engage in comparable forms of subterfuge and look to Justice Kennedy’s opinion for shelter.
UPDATE: In sum, the difference between Justice Kennedy and the plurality seems to me to be this: Justice Kennedy believes that race-based assignments can be made as a last resort to promote diversity (“depending on its meaning and definition”) in public schools. He does not set forth the definition of diversity under which race-based assignments are allowed, but they are allowed as a last resort to prevent “re-segregation.” Kennedy does not define re-segregation.
The pluarality does not reach the question of whether race-based assignments can be used as last resort to promote diversity. It believes, however, that race-based assignments cannot be used to achieve a particular racial balance for its own sake. If race-based assignments can ever be used by public schools to promote diversity (and the plurality takes no position on this question) it must be done based on a prior determination (that will be strictly scrutinized) that a particular level of diversity is necessary to achieve the purported educational benefits.
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