- The Washington Times - Tuesday, July 3, 2007

After the Supreme Court last week declared unconstitutional the way one school district in Seattle and one in Louisville, Ky., used race in determining which students were accepted to filled schools, the question becomes how the ruling will effect the many school districts across the country that similarly use race in school assignments.

The Seattle school district stipulated a 40 percent white, 60 percent nonwhite composition, and the Louisville school district required black enrollment of 15 percent to 50 percent. Chief Justice John Roberts penned a strong opinion, which was joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, but its implications were not fully endorsed by the fifth member of the majority and the court’s new swing voter, Justice Anthony Kennedy.

Justice Roberts‘ opinion points the way toward a model for school assignments that doesn’t consider race at all. His opinion argues that the court’s 2003 decision upholding the University of Michigan Law School’s practice of considering racial diversity as a factor in admissions applied specifically to higher education and doesn’t govern the two cases that deal with K-12 education. He also argues that “[t]he principle that racial balancing is not permitted is one of substance, not semantics,” the plurality opinion states, and “ acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ”

On both points, Justice Kennedy disagrees, but takes issue particularly with the latter. In his opinion, he argued the contrary — that “a compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue,” and that “[t]he plurality opinion is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of their race. In administering public schools, it is permissible to consider the schools’ racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.” The University of Michigan decision would have “some application” to the two cases under consideration.

The two policies in question are unconstitutional, Justice Kennedy agrees. But to read his opinion, it seems that such policies are not categorically unconstitutional: “[w]hat the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classifications.” If other programs are tried and fail, Justice Kennedy opens the door again to this kind of fixed and mechanical use of race that he has, in the context of these two cases, concluded is unconstitutional. While the judgment was the right one, Justice Kennedy’s controlling concurrence keeps the court from moving as far as it should have from the race-based admissions policies it endorsed in 2003.