The Desegregation Opinions: Kennedy's Concurrence

[Other posts in the series:

Law and Media Roundup

Reaction to Justice Thomas' concurrence

Reaction to Justice Breyer's dissent

Reaction to C.J. Roberts' opinion

Reaction to Justice Stevens' dissent

Reaction to Justice Kennedy's controlling concurrence

Opening thoughts (Parts I and II)]

The structure of these posts is to copy what I think are the key excerpts, then give my commentary at the bottom. This post is on Justice Kennedy's (controlling) concurrence.

Key excerpts:

"Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue." (2-3)

Problem with the Louisville plan

"Jefferson County [Louisville] fails to make clear to this Court--even in the limited respects implicated by Joshua's initial assignment and transfer denial--whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the State." (5-6)

Problem with the Seattle plan

"As for the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions on the basis of individual racial classifications. The district, nevertheless, has failed to make an adequate showing in at least one respect. It has failed to explain why, in a district composed of a diversity of races, with fewer than half of the students classified as "white," it has employed the crude racial categories of "white" and "non-white" as the basis for its assignment decisions.

The district has identified its purposes as follows: "(1) to promote the educational benefits of diverse school enrollments; (2) to reduce the potentially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent nonwhite students from having equitable access to the most popular over-subscribed schools." Id., at 19. Yet the school district does not explain how, in the context of its diverse student population, a blunt distinction between "white" and "non-white" furthers these goals. As the Court explains, "a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not." (6)

Why Kennedy refuses to sign on the portion of the majority opinion which would codify color-blindness as an absolute constitutional principle

"Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.

This is by way of preface to my respectful submission that parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U.S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown's objective of equal educational opportunity. 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. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U. S. 537, 559 (1896). The Court's decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.

In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306 (2003); id., at 387–388 (KENNEDY, J., dissenting). 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.

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." (7-9)

Noting that the de facto/de jure distinction means little to victims (he later goes on to explain why the distinction remains important)

From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for persisting injustices." (15)

Discussing the claim that "if race is the problem, race is the solution."

"The dissent refers to an opinion filed by Judge Kozinski in one of the cases now before us, and that opinion relied upon an opinion filed by Chief Judge Boudin in a case presenting an issue similar to the one here. See post, at 35 (citing 426 F. 3d 1162, 1193–1196 (CA9 2005) (concurring opinion) (citing Comfort v. Lynn School Comm., 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring))). Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution.

The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. 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.

The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin." (16-17)

Conclusion

"This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue." (17)

Commentary

First, let me congratulate Justice Kennedy on writing an opinion that, though it is on a topic I feel very strongly about and one that I disagree with him on, I find compelling and well-thought out. It seems clear that Justice Kennedy takes seriously the issues that motivate those of us who support race-conscious policies to bring about racial integration, and his rhetoric of "frustrating duality" seems to show that he does not dismiss the difficulties that even his own, moderate position, bring about. And, for my part, I do not dismiss the issues Justice Kennedy points out as to how defining race can lock people into identities and has troubling implications of its own. I also am pleased that Justice Kennedy kept the door open for race-conscious procedures in cases like this--a decision I was not hopeful for given his Grutter opinion and one that prevented this from being the absolutely crushing defeat for racial equality many of us were expecting. Kennedy's opinion is the controlling one, and it is very clear that race-conscious policies, so long as they are not along the line of individual race classification and assignment, are not unconstitutional.

I have a few problems, unsurprisingly, with his analysis. The first is an issue of clarity--in his objection to the Seattle program, he focuses on the fact that it divides students solely into "White/non-White", as opposed to a more finely tuned distinction. Point well taken, but if Seattle were to fix that, would it be okay? It doesn't seem like it would fall within Kennedy's stated objection to individual racial classification. The second problem is that Justice Kennedy seems to expect a lot out of school assignment plans. Most plans I know of are pretty simple, and don't even purport to be judging the kids along a meritocratic axis (I didn't go to Whitman because I was somehow "better" than a Churchill kid, I went there because I lived near it). Kennedy's demand for more holistic admission procedures may be sensible for college and universities, but it seems a bit much for high schools (are we going to have full-fledged applications for them too), and utterly out of the question for elementary schools. Third, Justice Kennedy doesn't sufficiently address the "race is the problem, so race is the solution" objection. The point about classification is, again, well-taken, but it doesn't seem like enough to win the day. People are raced in American society with or without the government's involvement. That's a train that's passed us by. So while there may be issues with that formulation, deciding now of all times to use that (altogether well-known problem) as an excuse for blocking well-thought out, solid policies of racial reform seems unreasonable. There's simply too much analysis behind this argument to be dismissed via one argument in a single paragraph.

But, as I said, it's difficult for me to get too angry, because Kennedy helped us dodge a bullet here. Now it's up to Seattle and Louisville to start developing plans within his guidelines that can continue us down the path to racial integration that Kennedy himself calls a "moral and ethical obligation."