The Bad Ruling With A Racially Diverse Lining

Alan Jenkins is executive director of  The Opportunity Agenda, a communications, research and advocacy organization with the mission of building the national will to expand opportunity in America. 

The Supreme Court ended a ruinous term last Thursday with a long-awaited decision on the constitutionality of voluntary school integration efforts in Seattle and Louisville. Earlier in the year, by 5-to-4 margins, the Court upheld an uncompromising ban on late term abortions, allowed school officials to censor and punish certain student speech, made it easier for prosecutors to remove potential jurors who have qualms about the death penalty and made it more difficult for people to challenge job bias and religious discrimination. In other words, the first full term of the Roberts Court showed a sharp turn away from the protection of well-established rights and a closing of the courthouse door in many important circumstances.

But despite appearances, the school integration decisions represent something of an exception to that trend. In those cases, the Court invalidated the Seattle and Louisville plans, which used race as one factor in promoting inclusive and diverse schools. The outcome of these cases was disappointing, to be sure. But much of the news reporting on the cases has gotten it wrong, describing the outcome as a 5-to-4 decision by Chief Justice John Roberts against voluntary school integration. In fact, the outcome of these cases was a 4-to-1-to-4 decision in which Justice Anthony Kennedy (the “1”) controlled the outcome and wrote a careful opinion with both positive and negative implications for the future of educational opportunity and our Constitution.

Justice Kennedy voted with Chief Justice Roberts and Justices Alito, Scalia and Thomas to strike down the specific policies used by the Louisville and Seattle school districts. But he agreed with Justices Souter, Stevens, Ginsburg and Breyer that educational diversity and combating segregation are compelling governmental interests that governments may pursue through careful efforts that consider race.

Unlike the Roberts group, Justice Kennedy made clear that his disagreement was with the specifics of the plans at issue, and not with their motives or the limited consideration of race to accomplish them. Kennedy concluded, for example, that

[i]f school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.

More clearly than in any of his past decisions, Justice Kennedy (and therefore a majority of the Court) firmly rejected Chief Justice Roberts’ position (typically articulated in past cases by Justices Scalia and Thomas) that considering race in a careful way to promote inclusion inflicts the same constitutional harm as the hateful segregation laws that Brown v. Board of Education legally overturned. While Chief Justice Roberts’ opinion quips that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” Justice Kennedy’s careful opinion explains that

[t]he enduring hope is that race should not matter; the reality is that it too often does,” and notes that “as an aspiration, Justice Harlan’s axiom [that our Constitution is “colorblind”] must command our assent.  In the real world, it is regrettable to say, it cannot be a universal constitutional principle.

What Justice Kennedy says is unconstitutional is considering the race of individual students in determining their school assignment. That element, and the ambiguous nature of the Seattle and Louisville plans, Kennedy said, made those programs insufficiently narrow in their tailoring to meet constitutional muster.

Justice Kennedy’s ruling misapprehends how difficult it is to overcome residential segregation, disparate school resources, and other barriers to inclusion without modest mechanisms like the “tie breakers” used in these cases. In other words, he is wrong to conclude that the Louisville and Seattle plans were not “narrowly tailored” to achieve the compelling goal of a diverse and equal education. But while the Court’s ruling will make it harder to bring our kids together across lines of difference, it’s important to acknowledge the victory for the principles of integration, inclusion and diversity that Justice Kennedy’s opinion represents.

Justice Kennedy’s opinion also makes clear that numerous options for promoting inclusion remain, many of which include explicit consideration of race. His opinion says:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

School districts and their allies are already hard at work crafting innovative approaches within the Court’s parameters that work on the ground. Congress, too, has an important role to play in promoting inclusion and combating segregation in the wake of last week’s decision. For example, Congress should allocate significant resources for communities that want to pursue diversity efforts in line with the Court’s ruling. Federal support for school construction and expansion should be allocated, in part, based on whether school locations and attendance zones will foster or stymie integration.

And the U.S. Senate must give far greater scrutiny of judicial nominees than it has done to date. It’s deeply disturbing that four members of the Court would have outlawed almost all effective efforts to promote inclusion in our nation's schools. And their view that the modest voluntary integration efforts at issue in these cases are constitutionally tantamount to Jim Crow-era segregation is nothing short of outrageous.

While a majority of the Court correctly rejected that extreme position, the Chief Justice's opinion—joined by Justices Alito, Scalia and Thomas—fundamentally misunderstands the purpose of our Constitution and highlights the importance of exacting questioning of the President's judicial nominations by the U.S. Senate.

Imperfect as Justice Kennedy’s opinion is, it’s worth noting that, but for the rigorous scrutiny of President Reagan’s Supreme Court nominees 20 years ago, Robert Bork would have been the fifth vote in this and many other decisions, instead of Justice Kennedy. While school integration survives, the Senate must reassert its “Advise and Consent” role as an essential protection against the erosion of rights that the Roberts wing of the Court represents.