Analysis: Schools' race experiments may be doomed
SCOTUS BL0G
By Lyle Denniston
If, as seems so, Justice Anthony M. Kennedy holds the decisive vote on the constitutionality of public schools' use of race to promote integration, those experiments may well fail to pass muster in the Supreme Court. Kennedy, who three years ago had said he might accept the very limited use of race in the context of college and university admissions (although he dissented on the particular plan upheld by the Court then), on Monday emphatically resisted the notion that he should accept it in another arena -- the K-12 public schools.
In order for public schools to try to reduce or eliminate "one-race" schools that largely reflect local housing patterns, they must be able to borrow from the college level the idea that the achievement of "racial diversity" in learning is constitutionally acceptable. That is the principle established by the Court in Grutter v. Bollinger in 2003. And, while Kennedy dissented oin the particulars, he had not totally rejected the core principle. On Monday, however, he repeatedly stressed that, for him, Grutter was limited to higher education.
"That case is completely inapplicable" to the K-12 cases now before the Court, he said at one point as the Court heard the cases of Parents Involved in Community Schools v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915), involving the sometime use of race in picking which school a child may attend in a student-choice assignment plan. The Court, Kennedy, had never said that a school district that was not seeking toi end official segregation can "turn around and use an individual student's race" in assigning that student to a school. He commented that the Court, in the Grutter decision, "went as far as it could away" from the principle that an individual's race cannot be the determining factor in the education setting.
The outcome of the cases would depend on Kennedy if the other eight Justices were to divide evenly on the two plans. There was abundant evidence during the hearings that they would. The two newest members of the Court, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., were not as openly hostile to the plans as was Justice Samuel A. Alito, but they were decidedly skeptical -- especially Alito. Those three, if they voted together, would probably attract the vote of Justice Clarence Thomas, who said nothing during the two-hour argument.
Justice Stephen G. Breyer was the most fervent defender of public schools' use of race to try to end the "racial isolation" that now is a feature of many urban school systems. But the other three Justices who, with Breyer and now retired Justice Sandray Day O'Connor, made a majority in the college decision in 2003, were also sympathetic to limited use of race this time, too. They were Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. |
