Today’s Supreme Court decision in the race-based school assignment cases turns out to be a disappointment. Chief Justice Roberts wrote an excellent opinion explaining why the two plans are unconstitutional, and four other Justices agreed with the result. However, one of them, Justice Kennedy, would not sign on to a key part of the Roberts opinion — the part that says assigning students to schools by race cannot be justified as a means of achieving a racial balance in particular schools that reflects the school district’s racial demographics. This leaves the door open for school systems to develop different types of plans for assigning students by race for that purpose, and then to try and persuade sympathetic lower courts that the plan in question does not run afoul of what Kennedy said in his concurrence.
Beyond the inherent undesirability of this result, Kennedy’s opinion strikes me as a poor vehicle for it. Unless I’ve missed something, Kennedy does not provide much guidance about the kinds of plans for assigning students to public school using race as a factor he would uphold. Kennedy’s opinion will become the touchstone by which the constitutionality of racial discrimination in public school assignment will be judged. Having conferred this role upon himself, he should have been more clear about what he will and will not accept. His lack of clarity may leave school districts confused and lower courts unbound.
Judicial modesty is a virtue and narrow opinions are its handmaiden. But when a judge is as immodest as Kennedy, narrow opinions tend to lose their appeal.
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