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The race-based school assignment cases — Chief Justice Roberts’ opinion

I’ve had some time to reflect on the Supreme Court’s decision in the race-based school assignment cases. Collectively the five opinions add up to more than 180 pages. So in the interest of readability, I’ll divide my discussion among several posts.
The case involves two school assignment plans: one for high school students in Seattle and one for elementary school students in Kentucky. In Seattle, 41 percent of the students in the school district as a whole are white; the remaining 59 percent are classified as “non-white.” The system allows incoming ninth graders to state their preferences as to which high schools they wish to attend. If too many students pick the same school, the system resorts to “tiebreakers.” The first tiebreaker is whether a sibling currently attends the school. The second tiebreaker is race, if the school is not within 10 percentage points of the district’s overall racial balance — i.e., if the school is less than 31 percent or more than 51 percent white.
The Kentucky school district allows parents of new students to state their top two elementary school choices among schools in their “cluster.” Assignment decisions are based on availability and on “racial guidelines.” If a school has a percentage of students of a particular race that exceeds the guidelines, the student will not be assigned there.
In practice, the racial component of the plans did not adversely affect large numbers of students. However, in Seattle, Jill Kurfirst was unable to enroll her son Andy Meek in Ballard High School’s special Biotechnology Career Academy because he is white. Andy suffered from certain learning disorders but had made good progress in middle school due to hands-on instruction. His mother and middle school teachers thought that the smaller biotechnology program provided his best hope for continued success. He was accepted into this competitive program but because the high school was more than 51 percent white, he lost out due to his race.
In Kentucky, Joshua McDonald was assigned to a kindergarten 10 miles from his house. His mother tried to have him transferred to a school nine miles closer. The school had space for him, but Joshua was not allowed to switch because of the “impact” his inclusion would have on the school’s racial balance.
By a 5-4 majority, the Court found both plans unconstitutional. Chief Justice Roberts wrote the majority opinion, but Justice Kennedy joined only certain parts of that opinion. Thus, understanding the law in this area now requires us to differentiate between the parts Kennedy agreed with and the parts he did not.
Kennedy agreed with the first merits-based portion of the opinion, which holds that the plans could not be sustained based on either of the two “compelling interests” that have been recognized as justifying the use of racial classifications in this context. First, it could not be justified on the basis of the interest in remedying the effects of past intentional discrimination. In the case of Seattle, there was no evidence that the school system had ever engaged in such discrimination. In the case of Kentucky, there had been past discrimination, but beginning in 1975 the school system operated under a court decree, and in 2000 the court found that the vestiges and effects associated with the past discrimination had been eliminated.
Nor could the use of race in assignments be justified by the other compelling interest recognized in Supreme Court jurisprudence — the desire for diversity in higher education upheld in the Grutter case. In the higher education cases, the compelling interest is based on what each student as an individual brings to the school, with racial or ethnic origin being one element of the package. In the Seattle and Kentucky cases, by contrast, race is not part of a broader effort to achieve exposure to diverse people and ideas. Rather, when it comes into play as it did for Andy Meeks and Joshua McDaniel, it is the sole consideration.
The second key part of the Roberts opinion rejects the argument that racial assignments are justified by the educational beneifts of reducing racial concentration in schools and of ensuring a racially integrated environment. Roberts did not opine on the extent to which educational and social benefits flow from racial diversity in public schools. Instead, he rejected the school districts’ defense because the racial classifications they used were not narrowly tailored to the goal of achieving the educational and social benefits said to flow from racial diversity. Seattle wanted white enrollment of between 31 and 51 percent in each high school. The district in Kentucky wanted black enrollment in elementary school to be no less than 15 percent and no more than 50 percent. Apparently, there was no evidence that these numbers (which are based on the racial demographics of the overall districts) have any close relationship with the level of diversity needed to realize the asserted educational benefits.
This is a point we have made in the context of race-based preferences at the college and university level, but it has even more force here. Diversity may confer educational benefits by, for example, exposing students to members of diverse groups and diverse viewpoints. And a “critical mass” of “diverse” individuals may be necessary to make this work. But proportional representation isn’t necessarily the same thing as critical mass. At Franklin High in Seattle, for example, without the use of race-based assignments the racial composition would have been 40 percent Asian-American, 30 percent African-American, 21 percent white, 8 percent Latino. Surely, that’s plenty of diversity for purposes of exposure to different kinds of people and preventing racial isolation; it just wasn’t close enough to proportional representation of whites to satisfy the city’s bureaucrats.
Having shown that the real state interest in these cases was simply racial balancing, Roberts then concluded that this interest is legally insufficient to justify the use of racial classifications. He wrote: “However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal whether labeled ‘racial diverstiy’ or anything else.”
The force of this analysis seems overwhelming. Yet Justice Kennedy did not endorse this portion of the opinion, leaving it one vote short of a majority. In my next post on the case, I’ll discuss what Justice Kennedy had to say on this point and the possible implications of it.

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