Dellinger on Kennedy: a theoretical concern that has no application in the real world...

Slate Magazine: By Walter Dellinger

Although I understand Justice Kennedy's aversion to race-based programs that require individual racial classifications, I still believe him to be wrong in voting to invalidate these programs on the basis of what is essentially a theoretical objection. The distinction just doesn't matter in practice in public school assignment programs. The issue was resolved at oral argument, when Justice Scalia raised the issue with counsel for the school board in the Seattle case.

Scalia asked, 'What criteria of race does the school, just out of curiosity, does the school district use? I mean, what if a particular child's grandfather was white? Would he qualify as white or non-white?'

The Seattle school board's counsel responded that this was just not an issue. The plan, he said, 'allows the parents to self identify, and the record in this case through the testimony of petitioner's precedent is that they were aware of no abuse of that.' When it comes to public school pupil assignments, this response seems very plausible. There is no government committee making racial classifications, and unlikely ever to be one in this context. At the end of the day, these two programs fall by virtue of Justice Kennedy's vote on the basis of a concern that has no application in the real world of public school assignments.