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The Weight of One Man’s Opinion

The Weight of One Man’s Opinion
While casting the deciding vote in the recent K-12 desegregation case, Justice Anthony Kennedy’s opinion left some room to maneuver.

By Ibram Rogers

Four conservative justices stood on one side of the ideological fence in the U.S. Supreme Court’s recent ruling that severely limited the use of race in K-12 integration plans. Four liberal justices positioned themselves on the other side.

Although he stepped on the conservative bloc’s side in the narrow 5-4 decision, Justice Anthony Kennedy eventually situated himself on the fence — alone — with an opinion that will set the stage for future legal discussions on the issue of race in American education.

“The controlling opinion in the decision is Justice Kennedy’s,” says Goodwin Liu, who wrote the amicus curiae brief for 19 former University of California chancellors in support of the two school districts’ integration programs. “You really have to read Justice Kennedy’s opinion to be clear on what exactly the court is saying.

“The court is split in a four-one-four pattern, which means that four justices would have adopted a broad rule against the consideration of race,” explains Liu, an assistant  professor of law at UC-Berkeley. “Four justices would have been much more permissive. But the swing vote was cast by Justice Kennedy.”

In Parents Involved in Community Schools v. Seattle School District No. 1, and Meredith v. Jefferson County Board of Education, parents sued the Louisville and Seattle school districts because the districts’ desegregation plans relied too heavily on race in determining which schools students could attend. Both plans were endorsed in federal appeals court, but were overturned by the Supreme Court. 

The conservative quartet — represented by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas — maintained that pursuing racial diversity in schools is not a compelling state interest and, therefore, school districts should not use race-conscious plans to integrate schools. 

The more liberal foursome — Justices Stephen Breyer, Ruth Bader Ginsberg, David H. Souter and John Paul Stevens — insisted that diversity in schools is a compelling state interest, and thus race-conscious strategies should be acceptable.

Kennedy, however, took his own road, declaring in his opinion that while pursuing racial diversity in schools is a compelling state interest, school districts cannot use a student’s race as the sole factor to achieve that goal.

“If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race,” Kennedy wrote.

His opinion suggests that school districts can — at least for now — publicly and openly endeavor to create racially integrated schools.

“One thing he resolves, which I think he resolves clearly, is that if schools want to consciously pursue increasing diversity or avoiding racial isolation they can employ race-neutral means to do that, even though their employment of race-neutral means is motivated by racial considerations,” says Kevin Brown, a law professor at Indiana University and the author of Race, Law and Education in the Post-Desegregation Era.

In his opinion, Kennedy provided school districts with several alternative strategies for pursuing diversity.

“School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic 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,” he wrote. “These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.”

School districts that use race as the primary factor in their desegregation plans can also follow the 40 or so school districts that use income level instead, Brown suggests.

All in all though, Brown says he was “amazed” that Kennedy decided to jump on the moderate side of the fence for this issue.

“He’s been such a strong member of the conservative bloc on issues related to race,” says Brown. For example, in 2003 Kennedy voted with the minority not to uphold the University of Michigan Law School’s affirmative action admissions policy.

“But it does appear like here he’s trying to move to capture the middle ground that was vacated by [retired Justice Sandra Day] O’Connor’s resignation.”

In the opinion of many legal experts, Kennedy has already taken over the moderate position that O’Connor championed until her resignation in 2006.

Brown says it’s no coincidence that Kennedy, who was appointed in 1988 by President Ronald Reagan, is becoming more moderate on issues of race.

“I think that one of the things that we’ve seen with some conservatives justices is that over a period of time, as they begin to really grapple with the issue of race in American society, they seem to thaw their edge a little bit with the philosophical notion that race shouldn’t matter,” he says.

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