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.

Comments

[E]

Maybe I am missing something, but how is Kennedy's concurrence able to tell us what the law is? He wrote on behalf of himself only. It seems to me that the only binding "law" is the law created by the majority in the Court's opinion. Right?

[bittern]

E: There's no majority. There's four over here, four over there, and one kind of towards the middle. If the issue is one-dimensional, Kennedy's distinctions are the ones that determine the majority and thus the law. Neither gang of four is a majority, so Kennedy is a majority of one. If the judgements cannot be laid out in one dimension, Kennedy is still considered the majority of one because (I believe) most people are fairly innumerate and maintain a naive conviction that a majority always must exist.

[M]

General rule in American law is that when there's no majority reasoning (and there wasn't in this case) the result will stand on the narrowest reasoning available (usually Kennedy's as it was here).

[E]

But was there not a majority with regard to the Court's opinion in parts I, II, III-A, and III-C?

[E]

I suppose your response is that since it is a "fragmented Court" which decided the case and "no single rationale explain[s] the result," Marks v. United States, 430 U.S. 188, 193 (1977), Kennedy's narrower grounds may represent the holding of the Court.

Fair enough.

[bcowan]

" ... 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 ..."

I agree that it is hard to grip, but that is because what Kennedy is endeavoring to handle is, at bottom, the philosophical problem of the one and the many.

The fundamentally dual aspect of "individual-in-community" refers to the human social context of the philosophical problem. The actual experience of individuals in community is probably the origin of all philosophy, not to mention law.

Accordingly, there is no doctrine about school district design that does not in fact "have it both ways" by saying something about the relative importance of individuals versus communities. Any doctrine that aims to be coherent will be required to abstract from this fundamental duality, either implicitly or explicity. It is up to the propounder(s) of such abstractions to say why they shaped them in the way they did: which side of the fundamental individual/community duality is to be promoted and which neglected or suppressed, and why.

Justice Kennedy's struggle with language to get it to bear witness to (what I take to be) his genuine fear that getting it wrong will exacerbate communal hostilities (that's what "corrosive discourse" refers to, I'm pretty sure)is far from dispositive of the general issue as it is felt throughout the country. I thought that the Court should continue its decades-long effort to acknowledge Brown as having said something important about how the nation might enhance the realization of its founding values by the manner in which it provides education to its diverse children.

Kennedy, like the other four on the side of striking down the local ordinances, got it wrong on this score. But I think his effort was far more noble and honest than the others' implicit denial that there is any problem that the mantra of "color-blind" will not address with complete adequacy.

Talk about empirical claims that lack rigorous testing!

[geral]

Summary:
The USA continues to be at risk of imminent terrorist attack in part because the fbi and the cia obsessively continue their criminal, covert, and inhumane assaults on people worldwide.

From brownsville, Texas
August 7, 2007
As I have documented on my website at http://www.sosbeevfbi.com
the fbi and the cia conducted criminal operations against my person from about 1998 to the present time, 24/7, worldwide, without cessation, without the slightest hindrance from Congress, the Courts, or the legal system. See my letter dated
August 9, 1999, at:
http://www.sosbeevfbi.com/lettersosbee.html
Also note that in March of 2001, I reported that, due to fbi and cia corruption and incompetence, the United States faces a dangerous crisis with respect to intelligence failures.See
http://www.sosbeevfbi.com/f.b.i.agentrobert.html
In 1999, I reported fbi and cia crimes to the United States Attorney in Honolulu, Hawaii.See :
http://www.sosbeevfbi.com/page1.html
Then, I filed a lawsuit in the United States Court in the year 2000.See:
http://www.sosbeevfbi.com/pagea05.html
I pursued all legal channels to report gross incompetence and corruption in the fbi and the cia, as reflected in the appeal dated July 9, 2001, as seen at:
http://www.sosbeevfbi.com/pagea01.html
Then, in the same month I filed the Writ to the U.S. Supreme Court, again detailing the gross abuse of power and criminal operations committed against my person by the fbi and the cia. See the Writ at:
http://www.sosbeevfbi.com/sosbeewrit.html
and see the implications of the denial of the Writ at:
http://www.sosbeevfbi.com/thelawoftheunite.html
The U.S. Supreme Court had my Writ under consideration at the time of the 911 attack on the United States; the high court subsequently denied the Writ on 10-1-01. See
http://www.sosbeevfbi.com/denialwrit.html
Throughout the entire period of time during which the 911 terrorists planned and executed the attack on the United States, the fbi and the cia were running covert criminal operations globally, 24/7, in efforts to silence me from reporting their crimes. Not a single government official, not a single judge, and not a single representative of Congress commented on the fbi and the cia criminal operations as one of the causes for the attack on the country.
Further, in about 1998-1999, the FAA discovered through its own intelligence operations that Bin Ladin and al Qaeda posed a hijacking threat to the United States; the FAA also stated that the FAA was aware that a part of the plot on 911 included the "...possibility that the terrorist group might try to hijack a commercial jet and slam it into a U.S. landmark." See 911 Commission Report, page 632, published by Barnes and Noble, 2006.[ Members: Kean, Hamilton, Ben-Veniste, Kerry, Fielding, Lehman, Gorelick, Roemer, Gorton, and Thompson].See also:
http://www.sosbeevfbi.com/part8-updatefor2003.html#may6

The conclusions to be drawn from the sorry record of inaction by the government (vis a vis 911) are in part that the officials are afraid (for a number of reasons)to directly hold the fbi and the cia responsible for their criminality and incompetence that led to 911; that the secret and criminal fbi and cia attacks on citizens of the USA are not subject to any government oversight, even when the national security is threatened by intelligence failures, especially as such failures are attributable in part to fbi and cia obsessions to silence (or force into suicide) certain whistle blowers (and others) who seek to stop these hideous agencies from a continuation of their worldwide commission of crimes against Humanity, as well as other high crimes and misdemeanors.

Finally, nothing has changed in the fbi and the cia concerning their obsessive continuation of criminal offenses which I have outlined over the past decade. See:
http://www.sosbeevfbi.com/mystory.html
and see:
http://www.sosbeevfbi.com/updatemystory.html

The failure of our leaders to address these issues signals to the world that the United States of America is a nation in decline and that the civilization that permits the atrocities advanced by such low minded and homicidal groups is failed.
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Several so-called Indy Media groups delete the above article; for example, Ireland Indymedia trashed the report, even though it generated genuine interest there.The link to the discarded report:
http://www.indymedia.ie/article/83738
Then, Indymedia Pittsburg trashes it saying that it is:are "garbage" (have no real readable content). The link:
http://pittsburgh.indymedia.org/news/?hidden=hidden
Sosbee's comments- The fools and cowards of some Indymedial groups who hide behind the brave title "Independent Media" are now recorded as minions of the fbi's and the cia's global killing and torture spree; these same Indymedia hoodlums are as responsible for the ongoing global bloodbath (brought about in the main by the fbi and the cia) as are their evil sisters in the corrupt mainstream media.

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Aljazeera- I wish you God's speed in your new
efforts to reach the world's people by competing
head-on with the corrupt and evil western media.
I, like you , am targeted for destruction; I, like
you (or some of your representatives) have been
maligned, attacked and virtually imprisoned by the
fbi/cia high tech thugs and low minded
operatives (of the united states of america;i.e.: USA );
I, like you try to get my message out for all who
are eager to discover the truth: that the world
is in the grips of an inhumane assault by the USA,
and that failure of our efforts portends the end
of freedom for all of Mankind, for all times.
Good Luck. May God's Grace Be With You. I am your
unlikely compatriot in the information war against
EVIL INCARNATE , as most clearly represented in
the individuals representing the government of
united states of america, its war machine, its
intelligence agencies and its media.

Turkey- you have in our generation a great opportunity to resist the overtures of the enemy of mankind-the united states of america-and at the same time to help save all of Mankind from permanent enslavement by the lunatics and power mongers of the uSA. Great Responsibility rests on your shoulders.Do not ignore it. Respectfully.
geral sosbee
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Pakistan- the enemy of Mankind (united states of america) has already discounted the enslavement of your people.
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To the People of Iran: I send my sincere affection and my prayer that you continue to prosper and that you also succeed in resisting the corruptive influences of the enemy of Mankind: the uSA.
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To the People of North Korea: I send my sincere affection and my prayer that North and South Korea may soon unify without the corruptive influence of the enemy of Mankind: the uSA.
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To the People of Saudi Arabia, Jordan, Egypt:
Your kINGS have sold you out to the dual axis of evil : Israel and uSA; you are now pawns in the global game dictated by the Jewish state and its facilitator, the united states of america. If you don't believe me , ask your neighbors in Iraq, Lebanon, and others; then ask your kINGS how best to deal with Israel's nuclear submarines standing by to strike.
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MY RECENT LETTER TO TORTURE VICTIMS
August 16, 2006
For several years I have had the honor and the accompanying pain to report fbi and cia crimes and misdemeanors against my person. The significance of my reports are not simply to assist myself in staying alive, but to provide an historical document which in time may serve others similarly imprisoned (though not always behind bars) by the high tech gadgetry (and low minded thugs) of these two hideous agencies.
Therefore, the first purpose for this article is to express my gratitude for all who have seen and verified my reports and for all who see the global importance to humanity of the lessons I and others attempt to present. Thank you eternally.
The other purpose herein is to offer whatever services I may to any other *person who is being tortured, imprisoned, or otherwise hounded by the world�s most misguided and pathological miscreants: the agents, operatives, thugs, assassins, executioners, handlers of the fbi and the cia and their sympathizers and allies globally. Tell me who you are, please; give me the dates, times and methods associated with your suffering at the hands of the fbi/cia and their global affiliates (including the mindless police in every jurisdiction), so that I can better understand how to attack (in an intellectual sense) these bestial humans in a way that will help educate the world regarding their purposes and their tactics. Provide the details and the names of your torturers. If you cannot communicate, then please relay the data to someone else for this study. While I may not be of direct aid to my fellow prisoners, I can add the material into the fold of my own updates and thereby give others the benefit of your travails; history needs you to vocalize your agony as I have for the benefit of future generations.
Someday the thugs I describe will be out of power; they will be replaced with a diametrically opposite mentality and morality as represented by you and I. The people who will replace the hate mongers and torturers are those of us who seek humane treatment, with no exceptions, now and always, for the most glorious and noble of this earth�s occupants, the individual human being. The misanthropes whose defective and collective vision is jaded by their trade mark images of blood, chains, torture cells, and mass graves, etc., will run for cover and the new civilization will be born from your ideas and your reports, and from mine. The program to remove the warlords and the vicious exploiters of mankind from power is underway now; we are at the front edge of the largely invisible effort to make this new awakening, or phenomenon, a reality for all of our Brothers and Sisters in every corner of the world.
Best Wishes.Love.
*See my message at:
http://www.sosbeevfbi.com/studiesonmindcon.html#mindcontrol
The above statements do not represent a solicitation of any kind; further, the above appeal represents neither an offer nor an acceptance of the data and material referenced herein; all efforts by Geral Sosbee, P. O. Box 2272, Brownsville, Texas, 78522 (956)459-3024, [email protected], are intended as an educational pursuit for students of the Humanities.
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MY COMMENTS TO THE WORLD:
Permit me to introduce you to the Enemy of Mankind ( as though you don't know): the uNITED STATES of AMERICA. Those who aid the uSA in the torture, imprisonment and killing of my Brothers and Sisters must answer someday to all of Humanity, and to GOD.
______________________________
Cult of torture,mayhem, Death
Where is the USA taking the world?
Down a path contrary to the laws of nature and Humanity, and at the same time contradistinctive to the dignity of man.
Rest of the text:
See the site for information on how the fbi/cia silence critics of USA wars on the world;see how the fbi/cia attempt to force into suicide the most viable and credible reporters of USA sponsored high crimes and misdemeanors globally; read the documents which expose the fbi and the cia as satanic and ritual torturers; discover or confirm the emergence of USA sponsored international goon squads who watch in real time and record (for the Senate Intelligence Subcommittee of Congress)as the Targets (of their inhumane assaults) take their own lives.
Don't take my word for it; investigate the phenomena yourselves; neither accept the denials and counter claims of the world's most heinous thugs and miscreants ( i.e., the fbi,cia), but delve into the matter with the dedication of a Renaissance explorer and the resolve of a bear on salmon trove.
Author:
geral sosbee
Short description of mail contact:
torture by fbi/cia and affiliates
Mail contact:
[email protected]
Short description of suggested url:
expose fbi/cia crimes against humanity: forced suicides, global torture
Suggested link:
http.www.sosbeevfbi.com
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Excerpts from : www.sosbeevfbi.com :
The tactics employed globally by the fbi/cia reflect the homicidal profile of the enforcers and perpetrators of the new, stagnant and completely controlled world. These tactics include, but are not limited to the following :
mass murder (sometimes one at a time)
torture (physical and psychological)
terrorism
blackmail (of a mortifying type)
stalking and kidnapping and fraudulent stings by law enforcement
burglary, robbery, theft, fraud, extortion
false imprisonment, abuse of civil process and disabling calumny
financial isolation and ruination
human experimentation (of a monstrous type)
programming for suicide (inter alia) of the Targeted individuals
psychological operations and mind control
psychoelectronic bombardment
chemical, biological, and viral assaults on human beings
nukings
intrusive, continuous and disturbing surveillance (physical and electronic) twenty four hours a day, seven days a week
-aided by tracking devices implanted in the person and properties of the Target
-with invasions into home, office and car ; and with strategic tamperings therein designed to drive the Target insane
The fbi/cia agents, operatives, thugs, assigns, handlers and supporters are your neighbors, friends, relatives, spouses, representatives, doctors, etc. Geral Sosbee
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MY OPINION:
Until the United States' terrorists and assassins are stopped in their
tracks, the world cannot rest. Human beings are presently tortured,
imprisoned and murdered by the fbi and the cia worldwide for no cause;
this will not stop until the global population demands the surrender of
the homicidal sociopaths who dominate U.S. political and economic
policies. The concept that if the U.S. is let alone (or with its
puppet allies) to be armed with nuclear weaponry in order to allow the
rest of the world to live in peace is total lunacy. The United States
used the nuclear bomb, threatens to use it again, and will in fact use
it again to attack any nation which remotely threatens the U.S.
stranglehold on the world. Indeed according to Karl W B Schwarz (and others),"evidence is still piling up that they have done wrong for the past three presidential administrations in using depleted uranium weapons on Iraq twice, Bosnia and Afghanistan."
Under the best of scenarios (as viewed from the perspective of non
conforming-belligerent nations), however, the world cannot defeat the
U.S. war machine. Any attempt to prepare to do so will be met with
total destruction of the aggressor. Even today the U.S. has another
weapon (other than conventional) which can theoretically wipe out,
instantaneously, any cache or bank of unfriendly technologies which may
pose a threat to the U.S. or its allies: the laser beam fixed in
positon in outer space can accomplish this little task just fine (see
world in a box at www.sosbeevfbi.com).
The real issue , I think, is how
to stop all weaponry on earth from being used and at the same time to
afford all human beings alive some hope for peace and stability
everywhere and for all time. The formation of a one world , one people
Humane global government must be studied and proposed. The tyrants of
any given country cannot be entrusted with Human Rights and Individual
Freedom issues ever again. This means that the people of the world, not
their respective governments, must embark on mankind's most ambitious
odyssey: the journey toward permanent peace and harmony on earth and
the uncompromising realization of Human Rights for all. This can be
done; such a goal is not simply a dream. What appears as an
unattainable dream is that the United States or any other government
on earth will someday stop killing and torturing people and allow them
to live in peace , mutual respect and love.
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SOSBEE'S PROCLAMATION ( someone must proclaim against uSA madness):
Whereas the present government of the United States (feigning
leadership) openly and without the slightest pretense of respect for
human life and in complete disregard for universally accepted standards
for basic human rights, engages under color of its national flag in
murder, torture, imprisonment and terrorist practices against the
peoples of the world, NOW THEREFORE SHOULD BE DECLARED AND HEREBY IS
DECLARED A CRIMINAL AND ILLEGITIMATE REPRESENTATIVE OF THE PEOPLE OF
THIS COUNTRY (THE UNITED STATES OF AMERICA) and as such deserves not a
respectable place among the family of nations and more significantly
merits nil when the final account of Humanitarian efforts be tabulated
by all that is holy and graceful in the universe.
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We the people of the world hereby prevent the fbi, the cia, the
militia, or any other government agency (or person) of the United
States (or any other country) from dictating the terms of our surrender
unto their authority, custom, culture, power now and for all times; in
furtherance of this recognition, the world's population forthwith seeks
to expose such dictatorial intent (and the techniques employed in
support of same) by public investigation which serves on a continuing
basis to protect and to defend the people of the world (now and in the
future) from any form of inhumane governance. EVERY MAN/WOMAN.
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As people discover the immoral, cowardly and macabre character of the
agents, operatives, handlers and associates of the fbi/cia (as manifest
globally in the killing/torture techniques used by these sociopathic
assassins to insure compliance to new world order dictates) we may not
reasonably expect a merciful redress from foreign and domestic freedom
fighters forced from desperation to employ against US equally
aggressive and abhorrent stratagems. Geral Sosbee