Much of the news reporting on the Supreme Court’s school integration cases has gotten it wrong, describing the outcome as a 5-to-4 opinion 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 mixed opinion with both positive and negative implications for the future of diversity and our Constitution.
Justice Kennedy voted with Roberts, Alito, Scalia, and Thomas to strike down the specific policies used by the Louisville and Seattle school districts, but also 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.
Justice Kennedy ruled, for example:
- “If 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.” (p.8).
- “In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.” (p.8)
Justice Kennedy (and therefore a majority of the Court) firmly rejected Chief Justice Roberts’ position 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 began to overturn. Kennedy’s opinion says, “[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 (and, therefore, the Court) says is unconstitutional is considering the race of individual students in determining their school assignment. That element, and the inexact details of the particular Seattle and Louisville plans, Kennedy said, made those programs insufficiently narrow in their tailoring to meet constitutional muster.
According to most educators and advocates concerned about promoting diversity and inclusion, Justice Kennedy “gets it”; he just doesn’t get how hard it is. In other words, he understands and articulates well why integration is so important to equal educational opportunity, and to the future of our nation. But he fails to see why achieving it sometimes requires attention to the details of student assignment. Research and practical experience show that considering broad demographic trends in school attendance policy is necessary, but not always sufficient, to fostering diverse and inclusive schools.
So the Court’s ruling will no doubt make it harder to bring our kids together across lines of difference. Yet it’s very important to acknowledge the remarkable victory for the principles of integration, inclusion and diversity, which a majority of the Court strongly embraced yesterday.
So now that consideration of individual student characteristics in school assignment is off the table in the K-12 voluntary integration context, what can schools, policymakers, parents and their children do to promote the vision of inclusion that a majority of the Court endorsed?
Justice Kennedy’s opinion makes clear that numerous options do 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.”
Educators and civil advocates are already hard at work to craft innovative approaches within the Court’s parameters that work on the ground.
In addition, a number of civil rights laws, including the Civil Rights Act of 1964, still require schools to avoid segregation or exclusion of students by race. The Bush Administration has an atrocious record of enforcing those laws, and yesterday’s decision should be an impetus to push for change. Certainly the next president should make it a priority.
Congress, too, has an important role to play in promoting inclusion and combating segregation in the wake of yesterday’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 depend, in part, on whether school locations and attendance zones will foster or stymie integration.
And, of course, 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–including the two newest members (Roberts and Alito) nominated by President Bush–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. Flawed as Justice Kennedy’s opinion is on this subject, it’s worth noting that, if not for the rigorous questioning and consideration of President Reagan’s Supreme Court nominee 20 years ago, Robert Bork would have been the fifth conservative vote in this and many other decisions, instead of Justice Kennedy.
Additional details regarding the decisions may be found at www.naacpldf.org and www.civilrights.org.