Reading the School Integration Cases Like a Lawyer

Mark Tushnet

Let's say you wanted to treat the Supreme Court's school integration cases as if they were, well, law. (I know that's not au fait, but indulge me.) Obviously, Justice Kennedy's opinion is the one to focus on. What does he say?

Justice Kennedy's opinion has, for purposes of treating it as law, two parts, conveniently labeled Part I and Part II, Most people have focused on Part II. There Justice Kennedy says that some race-conscious policies are constitutionally permissible: site selection, outreach, differential funding aimed at achieving race-conscious goals. These are not trivial conclusions as law, although Justice Kennedy says almost nothing to explain how his conclusions are consistent with prior law. (Race-conscious site selection designed to maintain racial separation in the schools is paradigmatically a constitutional violation, and, after all, the Chief Justice tells us that the way to stop discriminating is to stop discriminating.) One of Justice Thomas's last opinions as a court of appeals judge (released after his confirmation) held that race-conscious outreach was unconstitutional. And, prior to the Michigan affirmative action cases, there was a substantial question, to which Richard Primus and Kim Forde-Mazrui devoted major articles, about whether race-neutral policies selected to achieve race-conscious goals were constitutionally permissible. All that is by the boards now -- these policies are constitutionally permissible.

I find Part I more interesting. That is where Justice Kennedy explains why, in his view, the Seattle and Louisville policies are unconstitutional. And, again treating this part as law, his reasons identify quite limited flaws in the policies. He identifies two (or two-and-a-half) flaws. First, Seattle's policy uses a racial binary in a situation where it appears reasonable to use a more differentiated set of racial categories. Second, the policies are confusing -- or, as Justice Kennedy puts it, they do not describe "in detail, how decisions based on an individual student's race are made." Later he uses the terms "contradictions and confusions." In Louisville, the problem is that the school board "fails to make clear . . . whether . . .[it uses race] in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest."

Now, from a lawyer's point of view, these are easily remediable flaws. School boards can redefine the categories used in their policies aimed at overcoming racial isolation, and then -- at least if that's the only problem with their plans -- use race as a criterion for assigning students to schools. (Justice Kennedy does hint that he thinks there are other flaws in Seattle's policy, but he does not identify them -- and so, treating his opinion as law, the only identified legal problem with Seattle's policy is its use of the racial binary.) And, even more, it is open to a school board to argue that its situation is unlike that in Seattle, and that, given the racial composition of its schools, the racial binary is appropriate. Indeed, Justice Kennedy does not say that Louisville's use of the racial binary is a flaw that leads him to conclude that its policy is unconstitutional. Eliminating unclarity and confusion should be easy as well.

Justice Kennedy is less clear about the final reason the policies are unconstitutional, but I read his opinion as saying that the boards had achieved substantial integration without using race as a criterion for student assignments. The marginal gains in integration were too small to justify the race-based component of the boards' overall policies. (This is a theme in the plurality opinion as well, but of course that opinion denies that gains of any size in integration can justify race-based student assignments.) On this reading, a school board could justify its race-based student assignment policy by showing that it could not achieve substanatial integration by the means Justice Kennedy identifies in Part II. So, for example, it is relevant to the defense of a race-based student assignment policy that Seattle has constructed only new high school in the past 44 years, according to Justice Breyer, and that site seleciton policies will not have any significant effect on achieving integration. Similar showings might be developed for other proposed policies to replace race-based student assignment policies.

Of course one might say that Justice kennedy is hiding the ball, and that he would never read his own opinion in a way as generous to race-based assignment policies as I have suggested. The rhetoric he uses to criticize the dissent suggests that Justice Kennedy has deeper concerns about race-based student assignment policies. Maybe so, but the parts of the opinoin explainng why these particular programs are unconstitutional clearly make available the arguments I have sketched here. And it is the opinion, not our guesses about Justice Kennedy's unexpressed views, that is the law. (Even a hard-nosed legal realist, who thinks the law is what we can predict Justice Kennedy would do, would have to acknowledge that Justice Kennedy is not going to be on the Court forever, and that by the time the next case raising these issues arrives, there may be other justices, who will interpret the opinion, and not try to read their retired or deceased predecessor's mind.) As law, Justice Kennedy's opinion is, or can fairly be read to be, quite narrow.
Posted 11:09 AM by Mark Tushnet [link]