Stuart Taylor Jr. on Seattle schools case

Slate Magazine: By Stuart Taylor Jr.

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.

Putting Kennedy on the Couch

SCOTUSblog: By Lyle Denniston:

What Kennedy's opinion does not openly admit, but what Kennedy's view of his role has long made clear, is that he is deeply sensitive to the way his work as a judge is and will be perceived in history. This is not true only in the work of the Court on race questions, but on other social or cultural issues as well.

While his own quite conservative instincts must make it enormously tempting, now that there are four rigorously conservative colleagues, to join them routinely, the pull of reputation and public image appears to have told him to hesitate. He is even less tempted, of course, to join routinely in the more robust liberalism of his other four colleagues. Both help explain why he is so determinedly the middle Justice -- a position that is especially vivid at the conclusion of the just-completed Term.

What was fully on display on Thursday, amid a great deal of courtroom drama and soaring rhetoric, was the contest that is going on within the Court to influence Kennedy and his vote. And, in that contest, it can be argued that the Court's liberal bloc -- although it seems increasingly isolated on some of the bigger decisions -- is having a substantial effect on reinforcing Kennedy's instinct to keep staking out the middle. The sharp critique of the dissents plays into another facet of Kennedy's self-perception. ...

[Justice Kennedy] regularly seeks to put on display a large -- perhaps even a grand -- perception of the law that leads some unsympathetic observers to regard him as a puffed-up thespian using the Court and other public forums as a personal stage. And one of his grandest perceptions is that, if possible, the law should be made inclusive and should remain sensitive in human terms. (There is no doubt that Kennedy would regard even his much-criticized romanticizing of the relationship of mother and unborn child in the abortion ruling this Term as exhibiting just that kind of sensitivity, just as he probably also saw his often-maligned opinions in the past on gay sexual relations and on prayers at school graduations.)

He knows the man; I don't. Judging from Kennedy's opinions, this seems like a plausible speculation. I just don't think Kennedy pulls it off on a regular basis. makes me wonder (without any specific factual basis) about his clerks on the varying opinions. Or aren't we supposed to talk about that?

Kennedy's concurrence in Seattle Schools case

Tom Goldstein tries to make the best case that Justice Kennedy's concurrence in the Seattle Schools case is controlling, and may not be that bad. His step-by-step analysis is plausible in theory, although with very limited application to districts that are dead-set in maintaining integrated schools despite (almost universally) segregated housing patterns. But I am not persuaded that Goldstein adequately accounts for Kennedy's own application of his "reasoning" to the facts of Seattle and Louisville. Roger Friedman makes the point well:

SCOTUSblog:

As Breyer's dissent makes perfectly clear, if the use made of race in these cases cannot be justified, there is no use of race which can be found justified. We are left in the same state as in political gerrymandering, Kennedy in theory remains open to the use of race but not on any basis known in law or fact.

Kennedy playing Powell/O'Connor in Seattle School District

SEATTLE SCHOOL DIST. NO. 1: Justice Kennedy, concurring:

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,” is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education (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....

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....

The cases here were argued upon the assumption, and come to us on the premise, that the discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here. ...

You'll let me know if you can discern a principle here, besides making Justice Kennedy the arbiter of all such matters until a decisive change in the composition and balance of the Supreme Court. I wish the arbiter showed more of his Lawrence side in evidencing sensitivity to the realities of racial separation as they exist in today's America. To overturn Louisville's long term effective plan, given its history and acceptability, at long last, to its community, is a particular disgrace.