Justice Kennedy and the School District Cases
There are two very important ideas that emerge from Justice Kennedy's concurring opinion in Parents Involved, the landmark school desegregation opinion handed down today. Because of the way the remaining justices split their votes, it's Justice Kennedy's concurrence that really tells us what "the law" says going forward. Kennedy's first important idea is that school segregation and racial imbalance is no longer a white-nonwhite dichotomy. In a city with substantial racial diversity, a school with 50% white students, 50% African American students, and no Asian or Latino students, is not racially balanced. The defendant school districts lumped all students of color together in assessing racial imbalance, and Seattle did not permit individual students to be classified as members of multiple racial groups for school assignment purposes. Justice Kennedy sensibly argues that school districts must do better, and use finer-grained racial classifications if they are to use them at all. I believe that this part of Kennedy's opinion will be uncontroversial within a few years, if it isn't already.
Justice Kennedy's second idea ought to be more controversial, and it is certainly more intellectually ambitious.
Here I'll quote at length from Justice Kennedy's opinion:
"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. 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. . . . Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly."
Justice Kennedy explains the basis for distinguishing between probably permissible attendance zone gerrymandering, racially-targetted recruitment strategies, and resource allocation decisions that will predictably alter a school's racial balance, on the one hand, and probably impermissible explicit racial classifications, on the other, several paragraphs later:
"When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree."
I gather the sentiment is that (crudely?) characterizing neighborhoods or even groups on the basis of their racial demographics is less troubling than crudely characterizing individuals on the basis of race. I think an underlying premise is that racial classifications that are more obscure ("indirect" in Kennedy's words) are preferable to racial classifications that are more "in your face." There is some support for this distinction in antidiscrimination law generally -- the Fair Housing Act's prohibition on obvious race-based housing advertisements and its tolerance of subtler race-based advertising messages springs to mind. But these are ultimately empirical claims that Kennedy is making, and it is by no means clear that they have been tested in any empirically rigorous way. Indeed, for me the hardest part of Kennedy's opinion to come to grips with is his assertion that we can have it both ways - candid statements by elected officials about why they drew the school attendance zones where they did (racial balance) without incurring the harms that Kennedy attributes to individualistic classifications. Can school board officials really say "we decided not to build this new school where the land was cheapest or population growth was greatest, but have instead put our school in a more expensive, out of the way, location because it is at the boundary of a predominantly white area and a predominantly Latino area" without what Kennedy calls "corrosive discourse" resulting? And what, for that matter, is "corrosive discourse"? Why is it so dangerous? Those are questions that society will be confronting in the years ahead, because Justice Kennedy's very interesting concurrence is now the law of the land.