I generally agree that Justice Kennedy's controlling opinion leaves more room for school integration and affirmative action programs than one might think from the apocalyptic tone of Justice Breyer's dissent. How much more room? Kennedy is not at all clear on this. Indeed, much as I sympathize with his unwillingness to come down hard on either side, his controlling opinion will be of very little value to school officials trying to figure out what they are allowed to do or to lower courts trying to figure out what the law is. A friend observes, with some hyperbole: 'Every sentence in his opinion contradicts the sentence before it.'...
In this respect, the Kennedy-in-the-middle Court has some resemblance to the old Sandra Day O'Connor-in-the-middle Court and the older Lewis Powell-in-the-middle-Court—the one that ended 20 years ago when Kennedy replaced Powell. The issues are different, the actual holdings are different, but the music is similar...
This brings us back to my not-so-secret plan, which I sketched in a National Journal column (subscription required) after the oral argument last December:
...There is another—perhaps better—way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students' socioeconomic status in making school assignments and to give underprivileged students—who are disproportionately black or Hispanic—the opportunity to attend middle-class schools. ...
Such socioeconomic integration is actually more effective than pure racial balancing at improving the academic performance of poor children of all races, studies show. …
And in many areas, 'socioeconomic integration also will produce a sizable amount of racial integration,' according to "A New Way on School Integration," [PDF] a recent paper by Richard D. Kahlenberg of the Century Foundation.
Anyone familiar with that literature? My impression is that parallel claims in the college admissions world don't hold up very well, although greater socio-economic diversity is a desirable end in itself in both settings. It just doesn't make the promise of Brown, now 50+ years overdue, come true in our lifetimes.
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