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. ...
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.
I am not generally a fan of Justice Kennedy, although once in a while--as in Lawrence--he surprises me. I don't agree on his disposition of this case--that is putting it mildly--and his discussion of the facts in the relevant school districts (and his approach to de jure/de facto discrimination in this factual setting) seems to me wildly off the mark. But these remarks on racial classification (which stand somewhat free from those issues, and not inherently linked to that disposition) are worthy of more serious consideration and debate. Parallel questions have arisen over census classifications, and the extraordinary (and rapidly growing) variety of multi-ethnic, multi-racial identities in this society calls for greater nuance and more imaginative approaches to racial questions. The movie Bulworth offered one alternative, which may hold some promise in the long term. Meanwhile, there must be some other possibilities worth considering.
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