In its latest badly splintered decision addressing the equal protection status of the government’s use of race in allocating educational benefits, the U.S. Supreme Court recently invalidated the Seattle School District’s use of race in its student assignment processes.1
Seattle’s student assignment process allowed students to rank schools according to their preferences and, if too many students chose certain schools, the District used several factors as tiebreakers to resolve the conflict. The second of these factors gave preference to a student of an under-represented race if the racial composition of the school the student wished to attend was more than 10 percentage points away from the District’s overall racial composition.2
The Court applied a strict scrutiny analysis to determine that the student assignment plans violated the U.S. Constitution’s Equal Protection Clause. Like other notable race cases, however, the Court was far from unanimous or unambiguous in its decision. Justices Scalia, Thomas and Alito joined Chief Justice Roberts’s plurality opinion while Justice Kennedy only endorsed certain portions of that opinion and wrote a separate concurrence explaining his reasons for doing so. Justice Thomas also wrote a separate concurrence responding to a dissent authored by Justice Breyer, who was joined by Justices Stevens, Souter and Ginsburg. Justice Stevens also wrote a separate dissent.
The most important opinion from a technical standpoint is Justice Kennedy’s separate concurrence because it represents the narrowest ground for the judgment, which was held controlling in Marks.3 Justice Kennedy’s concurrence, however, did not clearly align itself with either of the extreme positions dominating the rest of the Court. While the plurality and dissent came to opposite conclusions on whether a compelling interest existed in increasing diversity to avoid racial isolation, Justice Kennedy stated cryptically that “[d]iversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.”4
But rather than elaborate on what meaning of diversity he would have found compelling, Justice Kennedy chose a minimalist path and proceeded to focus on the details of the case, eschewing statements of principle. He found that the districts had not met their burden of establishing “in detail, how decisions based on an individual student’s race are made.”5
For Seattle specifically, Justice Kennedy found that Seattle’s failure to explain why it divided its students into the two classes of “white” and “non-white” did not meet the burden of strict scrutiny.6 As for Jefferson County, Kentucky, the other district involved in the consolidated cases before the Court, Justice Kennedy stated that the county would have to show who made the race-based decisions, the extent of oversight over that person, the precise circumstances in which those decisions were made, and how the district determined which students would be subjected to a race-based test.7
Justice Kennedy took a similarly factual approach to the narrow tailoring aspect of strict scrutiny. He found that the school districts had not met their burden of showing that there was no race-neutral way of achieving greater diversity in their districts. The small number of students affected by the race-based measures indicated that other means could be found to advance the same modest goal.8
Justice Kennedy suggested numerous genuinely race-neutral measures that he thought could succeed at resolving the racial imbalance. Importantly, however, Justice Kennedy also suggested that a “more nuanced, individual evaluation of school needs and student characteristics that might include race as a component” and that would be “informed by Grutter”9 also would be permissible.10
The plurality took a much harder line than Justice Kennedy. Justices Roberts, Scalia, Thomas and Alito would have limited the compelling interests the Court would recognize to the two that are solidly established: (1) remedying the effects of past intentional discrimination and (2) promoting diversity in higher education.11 Thus, the plurality would have limited Grutter’s diversity rationale to only those situations involving individualized holistic review in the context of higher education.12
In striking contrast, Justice Breyer’s 77-page dissent13 treated Parents Involved as a desegregation case. The dissent emphasized what it saw as the artificiality of the distinction between de facto and de jure segregation. As a result, it found that the compelling interest in remedying past segregation was involved in both Seattle and Jefferson County and, therefore, voluntary desegregation measures were entirely appropriate, even though neither district had argued along those lines.14 In addition, the dissent emphasized that the qualitative distinction between race-based government actions that seek to include people of different races and those that seek to exclude them supported allowing race-based measures to overcome the resegregation of lower schools taking place because of segregated housing patterns.15
The dissent also would have extended the Grutter diversity rationale into the elementary education context because diversity in primary and secondary public education would be even more likely to inculcate the important values that would eventually break down racial stereotypes and promote cross-racial understanding.16
Like other recent Supreme Court cases involving race, the views of the plurality and the dissent in Parents Involved are a long way from agreement and show no signs of inclining toward one. This should come as no surprise because the differences among the justices stem from fundamental philosophical disagreements about the role of the judiciary.17 The justices in the plurality see themselves as defenders of the principles of equality before the law and individual treatment. Those in the dissent take a more pragmatic approach that tolerates violations of principles if those violations serve the noble ends of racial peace and harmony.
On a more practical level, however, Justice Kennedy has made a concrete change to the doctrine of strict scrutiny. Diversity (in some form) is now a compelling state interest in the context of lower education as well as higher education. But the catch is that if school districts want to take advantage of this change in the law, they must incorporate their use of race into a holistic review of the students they are assigning to their schools.
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Matthew Mihlon spent the summer between his second and third years of law school as an associate with Karr Tuttle Campbell. He will return to the University of Chicago School of Law this fall.
1 Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 551 U.S. ___ (2007). The consolidated cases also involved one with the Jefferson County (Kentucky) School District as a party.
2 Similarly, Jefferson County relied on racial guidelines within its student choice plan to maintain the level of black enrollment in non-magnet schools between 15 and 50 percent.
3 Marks v. U.S., 430 U.S. 188, 193 (1977), has been questioned since it was decided because of instances, arguably like that in Regents of Univ. of Ca. v. Bakke, 438 U.S. 265 (1978), where the reasoning behind the crucial fifth vote is entirely different from the rest of the plurality. But in cases like this one, where the reasoning of the critical concurrence is a lesser included part of the plurality, Marks still provides useful guidance.
4 Parents Involved, concurrence (Kennedy, J.) at 2–3.
5 Id. at 3.
6 Id. at 6.
7 Id. at 4.
8 Id. at 9–10
9 Grutter v. Bollinger, 539 U.S. 306 (2003). Grutter involved an equal protection challenge to the University of Michigan Law School’s affirmative action plan. Having affirmed that diversity in higher education was indeed a compelling state interest, the Court found the law school’s plan to be narrowly tailored because it used race as an unquantified “plus” factor in the context of a holistic review of each student as an individual. In contrast, the Court found that the University of Michigan’s undergraduate affirmative action plan was not narrowly tailored because it assigned a definite number of admission points to diversity candidates. Gratz v. Bollinger, 539 U.S. 244 (2003).
10 Parents Involved, concurrence (Kennedy, J.) at 10.
11 Id., plurality at 17–25.
12 Id. at 13–16.
13 If all appendices are included.
14 Id., dissent (Breyer, J.) at 20.
15 Id. at 28.
16 Id. 41–42.
17 See W. Robert Gray, The Four Faces of Affirmative Action: Fundamental Answers and Actions (Greenwood Press 2001).
