Thursday, June 28, 2007

The Parents Involved decision-- Swann Song or Bakke for our times?


Justice Kennedy's limiting concurrence in Parents Involved (the school desegregation cases) will be the object of much study in the days to come. It is important to note that no matter how strident or uncompromising the language one finds in Chief Justice Roberts' and Justice Thomas' opinions, Kennedy's concurrence limits what the Court has held. So here are a few things to think about at the outset.

First, Kennedy acknowledges that racial diversity and avoiding racial isolation in schools are compelling interests that might justify racially conscious school assignment policies. On this question he disagrees with the plurality and agrees with the dissenters.

Kennedy objects to student assignment policies that use the race of a particular student as the controlling factor in determining where an individual student goes to school. He also objects to student assignment policies that are unrealistic in their portrait of the population as white/non-white. Any student assignment policies that direct where individual students will be placed must, at a minimum, have to be multi-factor individualized considerations roughly akin to the sort approved in Grutter v. Bollinger, the University of Michigan affirmative action case decidedi n 2003. That in itself would make them far less likely to be employed by large school districts. Kennedy would also require considerable transparency as to how the selection system worked, which of course, undermines the way that the system approved in Grutter worked in practice. We might call this the Grutter-ization of school assignment policies.

Second, Kennedy objects to individual student assignment policies based on race if school boards have not considered other, non-race-based methods for promoting racial diversity and avoiding racial isolation.

Nevertheless, Kennedy has no problem with race-conscious policies by school boards that don't involve the specific assignment of individual students to schools based on their race. That means that race conscious policies that site new schools or move old ones based on expectations about likely racial makeup are permissible. Policies that assign students randomly by lottery or use factors like geographic distance from a school are also perfectly permissible, even if they are designed to achieve a more diverse balance of students by race and ethnicity. For example, a school district that used magnet schools with assignments based on nonracial factors to promote racial diversity would be permissible under his model.

What does this leave us with then? It leaves us with Grutter applied to elementary and secondary schools. Race conscious policies using non racial means are favored and must be attempted first; race based assignment policies that target individual students (as opposed to structural reforms like school siting policies) are permitted if they make individualized determinations and use race as only one factor.

This is, to be sure, a limitation on what courts had assumed following Swann v. Charlotte -Mecklenburg Board of Education in 1971, when the Court gave its blessing (albeit in dicta) to voluntary efforts by school boards to achieve racial integration. See 402 U.S. at 16 ("School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.") The Court distinguishes away Swann, arguing that Swann itself applied only to school districts that had previously been de jure segregated and were attempting to become unitary. I'm not sure that Swann can so easily be distinguished-- after all, the Court was clearly signaling that it wanted school boards to solve the problem of racial segregation on their own, rather than having the federal courts get involved. In any case, that aspect of Swann has now been discarded. Instead, Grutter becomes the model, if not in the plurality opinion, then in Justice Kennedy's.

And that is quite interesting, precisely because Kennedy himself did not join the majority opinion in Grutter. In one stroke he has signalled that he is more or less on board with Grutter. That is good news for people who were worried that all affirmative action policies were now in danger following Justice O'Connor's retirement. Kennedy may not uphold the next affirmative action policy that comes before the Court. But his position on affirmative action is not the same as the plurality's, much less that of Justice Thomas.

The final thing worth noting about the opinion is that because Kennedy takes a position in between the plurality and the dissenters, his position may end up serving the same function as Justice Powell's Bakke opinion did. It will set the boundaries of future debate about the scope of race conscious policies. All this, of course, depends on new appointments to the Court. But if the Court's composition does not change in the near future (or if Justice Stevens retires and is replaced by a liberal justice), Kennedy's approach will be what everyone will be talking about and working around.

It's good to be the Swing Justice.


Is it really a principled Constitutional distinction Kennedy rests upon? If you approve of policies that are intended to have a racial impact, and in fact have a racial impact, how is that any more Constitutionally acceptable than simply making decisions based on race? And I still don't understand the notion that decisions about individuals don't depend upon race when employing Grutter-like criteria.

I read Kennedy's opinion, indeed, as framing the debate for the future of race-related litigation. Unfortunately, as in the recent First Amendment cases, I read the framework that has been set as ideological: The Court will disapprove of policies that offend "conservative" sensibilities, and uphold the ones that don't.

I have not been able to read the Kennedy concurrence myself, but based on this and other takes on Kennedy's position, I am unsure how the plurality opinion and the Kennedy opinions will differ in practice.

Using race neutral criteria to achieve racial outcomes has been the approach of governments under initiative laws outlawing the use of racial preferences. I am confident that that would have been the case if Kennedy had joined the plurality opinion. Therefore, I do not see how Kennedy's requirement that schools use race neutral criteria represents much of a difference.

But, of course, Kennedy does not require that schools use race neutral criteria. On the contrary, he allows for considerations of race as long as race is not the sole factor determining preference.


You need to read Janice Rogers Brown's opinion interpreting Proposition 209 when she was on the California Supreme Court. Essentially, they barred even traditional minority outreach (i.e., targeting minorities and encouraging them to apply, but then evaluating them under equal admissions/employment standards) as being a form of preferential treatment. And she said this was consistent with the original intention of the Civil Rights Act of 1964.

I do realize that many conservatives who oppose affirmative action want this train to stop when it gets to formal color-blindness in admissions and employment standards, but that doesn't mean there aren't others who want the train to keep rolling along.

Is there anyone here who can refute the historical description of the relevant precedent in Justice Stevens' dissent? (And, don't bring up Justice Thomas's concurrence, because that was aimed at Justice Breyer and ignored Justice Stevens.) Anyone care to explain why Justice Rehnquist would -- based on, say, the Civil Rights Act of 1964 -- overturn a 1967 decision he affirmed in 1978 on the basis of the 14th Amendment? Is there any way -- based on the specifically applicable precedent that Justice Stevens cites in his dissent -- that CJ Roberts' plurality is not raw judicial activism? I like Roberts, but this looks pretty bad.

Kennedy is the new O'Connor, so "principled" in this context has a healthy amount of pragmatism, which -- though some dislike it -- is a legitimate judicial technique.

[The sanctimonious tone is a bit hard to take ... the rule is 'equal protection' ... not 'color blind' btw]

I did think Seattle used various criteria in their program. I was also surprised in a way that the two cases -- not really the same facts -- were decided together. It would be nice as well if you know they take a case that shows what sort of program IS legit.

The vote is in a fashion illegitimate. Kennedy ala Bakke is the deciding opinion, but didn't write the majority. But lots of strong rhetoric is tossed in an opinion by the CJ which your average person might deem the opinion of the Court. It's not, at least important parts, and it confuses things. Kennedy should have wrote the opinion.

Ala Emily Bazelon in Slate today, if you "like" Roberts, you might want to accept that this sort of thing is not somehow going to be an anomoly. He seems to be following in the footsteps of his predecessor, including his penchant for somewhat more narrow rulings and disposal of precedent when it is inconvenient.

And, not necessarily being upfront about it either.

An interesting feature of the opinons is the way the history of Brown became a battleground in this case. I'm taking this up on the Legal History Blog, with a first post today on Roberts' misuse of Brown II. More to come.

It is a conundrom that courts must take account of race in order to evaluate racial discrimination claims.

If an allegedly racial law or policy is challenged, in order to show damages and establish standing, the plaintiffs must establish in advance what the races are of the parties involved.

The "conservative" idea that this nation must be colour-blind in all its dealings is simply an 'back-door' attempt to gut actual "equal protection" under the law by foreclosing all gummint consideration of race.


School students should be assigned to a school, randomly. You can't get any more diverse than random. A computer program would do the trick.

Suppose you have two students, A and B, identical twins except that they live opposite sides of the district, A next to school X and B next to school Y. Suppose further that X and Y have identical racial and ethnic statistics.

Would it not be a lot cheaper for the district and a lot better for the individuals to assign A to X and B to Y rather than allow them to be randomly assigned?

If cost and other factors (friends, family convenience, etc) are ignored, random selection is fine. See if you can get the parents and school boards to go for that...

Of course, such assignment could never truly be random due to the potential gerrymandering of school district borders and the different functions of schools (e.g. vocational, military, college-prep HS) typically found in metropolitan areas.

A question about the consequences of this ruling:

What are its implications for plans in some urban school systems to experiment with single-gender public schools. The Court Thursday (including Kennedy) seemed to say with clarity that it is illegal to tell a kid: you cannot attend this school solely because of your race. So will it be allowable to say you can't attend a school solely because of your sex?


Of course, such assignment could never truly be random due to the potential gerrymandering of school district borders and the different functions of schools (e.g. vocational, military, college-prep HS) typically found in metropolitan areas.

See Millikan for more on this issue.


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