Thursday, June 28, 2007

Finding the Silver Lining in Today's School Integration Cases

No doubt the bottom line and the opinion of CJ Roberts in the schools cases will get the lion's share of press attention, but the actual result is, in my view, not nearly as drastic as suggested by some of the rhetoric from that opinion (described by Thomas Healy here.) But even the Roberts opinion itself leaves open the possibility that the Court would uphold an effort to achieve the educational benefits of racial diversity in public schools, if diversity were defined in terms of educational goals rather than in relation to the racial composition of the population. More importantly, Roberts does not have Kennedy's vote for rejecting combating racial isolation as a compelling interest. Kennedy, who casts the fifth and decisive vote and only joins part of the Roberts opinion, thinks it is a compelling interest. He rejects the plans as not narrowly tailored because he thinks the Louisville plan is too ill-defined and the Seattle plan too crude in its categorization of students. He then goes on to describe his own views in terms that align him pretty closely with the liberals:
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" 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.
It's worth recalling that while Kennedy dissented in Grutter, he wrote separately to say that he accepted diversity as a compelling interest. His pointed disagreement with Roberts here suggests that there are not five votes on the Court for a commitment to the strong form of colorblindness advocated by Justice Thomas.