The Parents Involved decision-- Swann Song or Bakke for our times?

JB

Justice Kennedy's limiting concurrence in Parents Involved (the school desegregation cases) will be the object of much study in the days to come. It is important to note that no matter how strident or uncompromising the language one finds in Chief Justice Roberts' and Justice Thomas' opinions, Kennedy's concurrence limits what the Court has held. So here are a few things to think about at the outset.



First, Kennedy acknowledges that racial diversity and avoiding racial isolation in schools are compelling interests that might justify racially conscious school assignment policies. On this question he disagrees with the plurality and agrees with the dissenters.



Kennedy objects to student assignment policies that use the race of a particular student as the controlling factor in determining where an individual student goes to school. He also objects to student assignment policies that are unrealistic in their portrait of the population as white/non-white. Any student assignment policies that direct where individual students will be placed must, at a minimum, have to be multi-factor individualized considerations roughly akin to the sort approved in Grutter v. Bollinger, the University of Michigan affirmative action case decidedi n 2003. That in itself would make them far less likely to be employed by large school districts. Kennedy would also require considerable transparency as to how the selection system worked, which of course, undermines the way that the system approved in Grutter worked in practice. We might call this the Grutter-ization of school assignment policies.



Second, Kennedy objects to individual student assignment policies based on race if school boards have not considered other, non-race-based methods for promoting racial diversity and avoiding racial isolation.



Nevertheless, Kennedy has no problem with race-conscious policies by school boards that don't involve the specific assignment of individual students to schools based on their race. That means that race conscious policies that site new schools or move old ones based on expectations about likely racial makeup are permissible. Policies that assign students randomly by lottery or use factors like geographic distance from a school are also perfectly permissible, even if they are designed to achieve a more diverse balance of students by race and ethnicity. For example, a school district that used magnet schools with assignments based on nonracial factors to promote racial diversity would be permissible under his model.



What does this leave us with then? It leaves us with Grutter applied to elementary and secondary schools. Race conscious policies using non racial means are favored and must be attempted first; race based assignment policies that target individual students (as opposed to structural reforms like school siting policies) are permitted if they make individualized determinations and use race as only one factor.



This is, to be sure, a limitation on what courts had assumed following Swann v. Charlotte -Mecklenburg Board of Education in 1971, when the Court gave its blessing (albeit in dicta) to voluntary efforts by school boards to achieve racial integration. See 402 U.S. at 16 ("School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.") The Court distinguishes away Swann, arguing that Swann itself applied only to school districts that had previously been de jure segregated and were attempting to become unitary. I'm not sure that Swann can so easily be distinguished-- after all, the Court was clearly signaling that it wanted school boards to solve the problem of racial segregation on their own, rather than having the federal courts get involved. In any case, that aspect of Swann has now been discarded. Instead, Grutter becomes the model, if not in the plurality opinion, then in Justice Kennedy's.



And that is quite interesting, precisely because Kennedy himself did not join the majority opinion in Grutter. In one stroke he has signalled that he is more or less on board with Grutter. That is good news for people who were worried that all affirmative action policies were now in danger following Justice O'Connor's retirement. Kennedy may not uphold the next affirmative action policy that comes before the Court. But his position on affirmative action is not the same as the plurality's, much less that of Justice Thomas.



The final thing worth noting about the opinion is that because Kennedy takes a position in between the plurality and the dissenters, his position may end up serving the same function as Justice Powell's Bakke opinion did. It will set the boundaries of future debate about the scope of race conscious policies. All this, of course, depends on new appointments to the Court. But if the Court's composition does not change in the near future (or if Justice Stevens retires and is replaced by a liberal justice), Kennedy's approach will be what everyone will be talking about and working around.



It's good to be the Swing Justice.