As in any good theater, the climax comes in the last act. So it was on June 28—the last day of the 2006–2007 term, that the nine robed justices filed onto their stage to reveal their long-awaited decisions in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County (hereafter Seattle/Jefferson County).1
When the Court pronounces on race and education, the attentive public holds its breath. The stakes are enormously high and not only for the institutions affected. We have a collective hope that the judiciary can articulate a constitutional path through the minefield of race relations that has caused so much grief and confusion in this nation’s history. It has proved a difficult task for the Court.
In 1978, the justices decided Regents of the University of California v. Bakke.2 The Court was divided into two equal blocs of four. The first bloc thought the straightforward Civil Rights Act language of Title VI meant Bakke, a white male, could not be disadvantaged because of his race in a medical school admissions process, while the other bloc thought the long history of national discrimination justified minority preferences. Justice Powell wrote a separate decisive opinion affirming that the Constitution protects persons of all racial and ethnic backgrounds and that protection bars racial quotas in admissions. But he said enigmatically that race, if used as a plus factor among other applicant characteristics to create more diversity in a school, might be a compelling interest. Since Powell’s loophole was hard to interpret and easy to evade in secretive admissions committee meetings, his opinion seemed to have little effect on actual admissions policies, which continued to use race, often decisively.3
Not until 2003, in two cases involving the use of race in the University of Michigan’s admissions procedures, did it become clear what influence Powell’s solo opinion would have on the Court. Again the Court was deeply split. A majority accepted the concept that diversity, of which race is one component, is a compelling interest in higher education, but was divided on the application of that principle. In Gratz v. Bollinger, there were six votes to strike down a point system that favored the undergraduate admission of members of some minority groups, but in the companion case, Grutter v. Bollinger, the Court upheld a murky Michigan Law School admissions process that considered some racial and ethnic identifications a “plus” in the individual consideration of candidates.4
In June of 2006, the Court announced that it would consider the use of race as a factor in making pupil assignments in K–12 systems in Jefferson County (metropolitan Louisville) and Seattle. A number of significant questions were involved. Would the new court appointees (Roberts and Alito) unite to overturn Grutter? Would the higher education diversity rationale apply to K–12 education? Were the pupil assignments narrowly tailored? Did the district properly consider race-neutral alternatives before using individual racial classifications?
The answers were no, maybe, no, and no, but surprise, surprise, the Court was again deeply split. There were four votes (Roberts, Alito, Thomas, and Scalia) condemning this use of race in pupil assignments and four votes (Breyer, Ginsberg, Sauter, and Stevens) applauding it. Assuming the Powell Bakke mantle, Justice Kennedy agreed the two pupil assignment plans were unconstitutional, but criticized both sides’ reasoning and may have opened the door for the continued use of race in K–12 decision-making.
The drama came not only with the outcome of the cases, but also with what the decision revealed about tensions in the Court when confronting momentous issues involving race. Five to four decisions were not unusual during the 2006–2007 term—about 20 percent reflecting that vote, and it was a much higher percentage in the most important cases. The pupil assignment cases, however, not only split the Court, but fractured some human relationships as well. For example,
Chief Justice Roberts opined for the Court: “Justice Breyer’s dissent…fails to ground the result it would reach in law. Instead, it relies on inapplicable precedent and even dicta, while dismissing contrary holdings, alters and even misapplies our well-established legal framework of assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decisions.” (at 2761)
Justice Thomas concurred: “It should escape no one that behind Justice Breyer’s veil of judicial modesty hides an inflated role for the Federal Judiciary.” (at 2779, fn 14) Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.” (at 2788, fn 30)
Justice Kennedy also concurred. After stating that he agreed with most of the Roberts opinion, he indicated that the rest of it “seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause.” However, he added, “Justice Breyer’s dissenting opinion, on the other hand, rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions, that in my view are both erroneous and in fundamental conflict with basic equal protection principles.” (at 2788)
Justice Stevens dissented: “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” (at 2799)
Justice Breyer dissented: [The plurality] “distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation and undermines Brown’s promise…” (at 2800)
This might not be a good time to accept an invitation to a Supreme Court picnic.
What does the Seattle/Jefferson County Decision Hold?
The day after the decision, headline writers, educators, and political candidates clamored that the court had approved segregation, thwarted desegregation, or encouraged resegregation.5 (What are the odds that these pundits actually read the five opinions, which totaled 185 pages? The critical passages often require the kind of careful textual and precedential analysis that launches a score of law review articles.) What is clear is that the segregation language is misleading and inflammatory. As Justice Thomas pointed out, “Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.” (at 2768)
Seattle never had a segregated school system. Nevertheless, Seattle’s chose to divide its students into two overall categories: white (41 percent) and non-white (59 percent). Non-whites were composed of 23.8 percent Asian-Americans, 23.1 percent African-Americans, 10.3 percent Latinos, and 2.8 percent Native-Americans. Ninth graders could ordinarily select from ten high schools of varying popularity. Seattle’s policy was that each school’s enrollment had to fall within 10 percentage points of the district’s overall racial composition. Unless an applicant had a sibling already enrolled in a particular school, admission depended on whether the applicant’s race fit those guidelines.
As noted by Sharon Browne of the Pacific Legal Foundation—which played a major role supporting the parent plaintiffs—Seattle’s Franklin High School’s enrollment would have been 40 percent Asian-Americans, 30 percent African-Americans, 21 percent white, and 7 percent Latinos without any race-based assignments. Whether the standard is integration or diversity, Franklin High would have fit it. But under Seattle’s rule, the number of Asian-American and African-American students had to be decreased, so that the number of white students could be increased to about 40 percent.6 Thus the pupil assignment policy under review was almost pure racial balancing.
Kentucky schools were segregated before Brown v. Board of Education was decided in 1954, and the Jefferson County schools were under court order to desegregate for twenty-five years. In 2000, after an exhaustive review, the District Court found that the schools had eliminated the vestiges of discrimination “[t]o the greatest extent possible” and declared that the schools had achieved unitary status. Although the decree had been dissolved, Jefferson County schools, which were 66 percent white and 34 percent African-American, created a policy mandating that all non-magnet schools had to have an enrollment of at least 15 percent, but no more than 50 percent, of African-American students. New students could attend a neighborhood school only if their presence would not contribute to the school’s racial imbalance. Thus, when Crystal Meredith sought to enroll her perspective kindergartner in school only a mile from her house, school authorities assigned him to a school ten miles from her home where his race—white—would fit the guidelines.
The details about the operation of the Seattle/Jefferson County pupil assignment systems and the particular numbers involved were important to the Roberts bloc, but barely mentioned by the Breyer bloc, who saw the issues on more symbolic and political terms.7
The Roberts bloc was firmly against the use of race-based pupil assignments in both districts. The Chief Justice’s language rings with declarations about the evils of classifying Americans by race for the purpose of granting or denying benefits. Roberts concluded by saying, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (at 2768)
But aside from the rhetoric, the Chief’s opinion is given over to a logical (Breyer would probably use “cold-blooded”) exposition about the meaning of judicial precedents on race and education since Brown. Roberts, wishing to claim Brown’s legacy, was surely right that what the plaintiffs wanted in that case and what the Court unanimously gave them was a ruling preventing local schools from assigning students on the basis of race. Later, faced with the intransigence of many school districts, the Court approved a variety of race-based policies to integrate formerly de jure segregated schools. In some districts, courts issued detailed orders outlining integration policies and, in a few instances, judges practically became administrators of school systems. But such judicial powers never extended to schools where no finding of discrimination had been made. By the eighties, the federal judiciary was presiding over lifting judicial decrees requiring various integration steps, because the schools had achieved unitary status, i.e., all segregative practices had been ended. The key to the Roberts bloc opinion is that there was no de jure segregation in either school district that required the use of race-based pupil assignments.
The Breyer bloc saw Brown in a very different light. For them, Brown is an icon that promises an integrated society and the districts’ current legal status is irrelevant.8 In their view, government agencies are free to pursue integration, even if achieving that goal means coercing citizens to create racial balance in schools whether the imbalance is caused by discrimination or other factors. Breyer’s bottom line: “I believe only that the Constitution allows democratically elected school boards to make up their own minds as how to best include people of all races in one America.” (at 2824) From this perspective, the ideological ends justify the means. Breyer articulated no boundaries to this power. As Justice Kennedy warned, Breyer’s conclusions “have no principled limits and would result in the broad acceptance of governmental racial classifications in fields far afield from schooling.” (at 2793)
Justice Breyer’s eagerness to defer to school board policy on matters of constitutional significance seems expedient.9 The Supreme Court has a long history of overturning local board policies on flag salutes (1943),10 school prayer and bible reading (1963),11 symbolic arm bands (1969),12 and race-based teacher layoffs (1986),13 etc. Dozens of school boards have had policies related to employment, discipline, collective bargaining, curriculum, and anything involving race, religion, and sexuality second-guessed by lower courts.
There are almost 15,000 school boards in this country—about 85 percent in districts with fewer than 5,000 students.14 We should be grateful to the butcher, the baker, the candlestick maker, and the occasional broker who volunteer for the typically unpaid and often thankless job of creating the nitty-gritty policy that make public schools run.15 But the reality is that state accountability requirements and the federal No Child Left Behind Act, as well as a host of other pieces of legislation and regulation, have dramatically reduced the autonomy of local school boards. It is Panglossian to entrust these boards with making race-based decisions when even the high court is so divided about the legal bounds of such policies.
The key to Justice Kennedy’s crucial fifth vote was his aversion to using individual racial classifications to benefit or disadvantage students. In his view, since both district plans before the court did so, they were clearly unconstitutional. The Roberts opinion pointed out the differences between K–12 and university education and reluctantly agreed that diversity might be compelling in the latter, but did not concede that diversity at the K–12 level is a compelling interest. Kennedy disagreed, believing that “Diversity, depending on its meaning and definition, is a compelling educational goal,”16 and that school districts should have some flexibility in achieving that goal.
It is now firmly a part of constitutional law that even when a compelling interest exists, strict scrutiny requires that race-neutral alternatives be seriously considered before using race-preferential means. This was an area of major agreement between Kennedy and the Roberts bloc. Neither believed the defendant districts had engaged in proper race-neutral consideration. Kennedy affirmed that bringing students of diverse backgrounds together through strategic site selection of new schools, drawing up attendance zones considering the demographics of neighborhoods, allocating resources for special programs, recruiting students and faculty in a targeted fashion, and tracking education statistics by race are all alternatives that might be appropriate. (at 2792) Roberts wanted to defer ruling on any of these policies because they were not then before the Court. Breyer, however, dismissed the possibility of race-neutral alternatives, noting that Seattle had not built a new high school for forty-four years. A few days after the decision, however, Seattle announced that the decision would have no effect because it had suspended its race-based assignment program for several years and was achieving diversity by placing International Baccalaureate and dual language programs in locations that would draw diverse student bodies.17
No member of the Court discussed what may be the most promising race-neutral program available, namely creating diverse schools by integrating them economically. Of course, in many schools that will also increase racial and ethnic diversity, but research seems to show that class is a more powerful predictor of educational achievement and that mixed class schools can benefit less affluent students without undermining the performance of middle-class students.18 At a minimum, any school district contemplating the use of race for pupil assignments would be wise to consider using economic factors for integration first.
Impact on Higher Education
The reaction to the Seattle/Jefferson County decision was a huge sigh of relief in the higher education establishment. During oral argument, questions from the bench indicated considerable judicial skepticism about the pupil assignment plans, so there seemed to be little doubt that the plaintiffs would prevail. The uncertainty was mostly about whether the Court with its two new members would break dramatic legal ground by broadly prohibiting the use of racial classifications and, perhaps, even backing away from viewing diversity as a compelling interest in education. Justice O’Connor, the fifth vote upholding the Michigan Law School’s admissions process, had retired. The new swing vote was thought to be Justice Kennedy, who had dissented in Grutter.
But after the Seattle/Jefferson County decision was announced, John C. Brittain, chief counsel for the Lawyers Committee for Civil Rights under Law, declared, “I think higher education came out one of the big winners in this decision.”19 Peter Schmidt, writing in the Chronicle of Higher Education, summed up the first blush consensus among “supporters and critics of affirmative action” that many public school districts may have to alter pupil assignment policies, but that the decision did not significantly change the law governing race conscious policies in other areas.20 Compared to some expectations about the impact of these decisions,21 that consensus is correct, but there are reasons to think that these K–12 decisions may have some long-term effects on higher education.
When the Supreme Court makes highly visible decisions in controverted areas, it energizes that legal field. The precise holding may be narrow, but every line of dicta in the opinions is scrutinized to see where judicial winds may blow. Plaintiffs’ lawyers look for new cases. Institutional counsels review and recommend changes to policies that may be vulnerable. In this instance, the Department of Education’s Office for Civil Rights, silent about its interpretation of Gratz and Grutter, may finally release new guidelines on the use of race in educational institutions. Nevertheless, it may take a decade for the full impact of the Seattle/Jefferson County decision to be fully realized. But it is worth reviewing some possible effects now. There are several categories to consider, keeping in mind Justice Kennedy’s influential opinion affirming the value of educational diversity, while condemning approaches that classify individual students and then treat them differently.
Grutter was not overturned—that was the focus of higher education’s relief about the Seattle/Jefferson County decision. Most restriction on the use of race in higher education admissions will have to occur because a particular institution’s use of race is not narrowly tailored. As Arthur L. Coleman and Scott R. Palmer, who have managed the College Board’s response to Gratz and Grutter, commented on the new decisions: “To satisfy strict scrutiny standards, institutions must maintain a continuing record of their efforts to evaluate race-neutral possibilities, along with information that supports their judgment.”22 If many higher education institutions have actually undergone that justification process, they are being remarkably quiet about it.23
Nevertheless, Justice Kennedy’s opinion crosses a significant bridge in making the diversity concept applicable to K–12. While he condemned treating individuals differently simply because of race (at 2797) he somewhat mysteriously opened the door to considering racial diversity for individual K–12 admissions decisions through “a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component.”(at 2797) How this might work in practice, Kennedy does not further explain nor does he cite any examples of the process he has in mind.
Will Kennedy’s “door” negate the overall effect of the Seattle/Jefferson County decision, as it might be argued that Powell’s loophole overwhelmed the Bakke restrictions? Mark Tushnet, Cromwell Professor of Constitutional Law at Harvard, ameliorated his dissatisfaction with the Court’s new ruling by opining that conservative litigating agencies do not have the staying power to enforce it and that the political direction of the country would soon change the composition of the judiciary.24 But there is an important practical distinction between Powell and Kennedy here. The actual criteria and admissions deliberations used at selective higher education institutions are virtually invisible. When an applicant is turned down for admission to Highly Selective University, who knows the real reason why? School board policies are much more open to public participation and transparent in operation.25 When a child is denied entrance to her neighborhood school, the policy and the decision will need to be clear to her parents. The public may not be as sympathetic to the virtues of transporting a kindergartner ten miles to achieve “diversity” as Professor Tushnet imagines.
Few observers of the Michigan admissions decisions could immediately predict their impact on race-exclusive scholarships and fellowships. There were no follow up court cases on scholarships26 and no new federal guidelines, but there was change. Less than three years after Gratz and Grutter, the New York Times reported, “Facing threats of litigation and pressure from Washington, colleges and universities nationwide are opening to white students hundreds of thousands of dollars in fellowships, scholarships and other programs previously created for minorities.”27 Unfortunately, no comprehensive list of institutions making this change exists, but Travis Rendl at the American Association of State College and Universities estimated that “as many as half the four thousand colleges in the United States had reviewed or modified such programs.”28
There were several motivators for this change. Roger Clegg of the Center for Equal Opportunity reported sending out over 200 letters to various institutions warning them of violations of the law and received positive responses from nearly all of them. The Center for Individual Rights targeted race-exclusive summer journalism programs held at twenty-seven public and private universities supported by the Dow Jones Newspaper Fund. The case was settled and the program is now open to all.29 The Department of Education’s Office for Civil Rights conducted a few investigations, and at least one (Southern Illinois University) resulted favorably in a consent decree opening up graduate fellowships to all races and both genders.30
The Seattle/Jefferson County decision may not have an impact beyond the Michigan cases regarding scholarships in higher education, except to convince a few recalcitrant institutions that the Supreme Court is serious about ending race-exclusive programs and that time for voluntary change may be running out. What is more complicated are several programs, including some federally financed, that are open to everyone if the candidate expresses a commitment to a career devoted to improving the status of minorities and women. These programs create an ideological racial test for eligibility. A student interested in the welfare of Hispanic migrant workers would be eligible, but a student concerned about the unemployed in Appalachia would not be. Also, K–12 private schools that receive federal funds now need to examine any student aid programs that classify by race for possible violations of Title VI.
There is very little in the Jefferson County/Seattle decision about employment, but the diversity principle will surely be used to argue for racial considerations in faculty hiring. How this can be done legally will have to await further decisions. Precedent suggests that race cannot be the only plus factor in the diversity equation. Further, the common practice of reserving a line for a “diversity” hire or creating a new line when a minority person is discovered in the market is surely questionable under Gratz and Grutter and the Seattle/Jefferson County decisions, because other candidates are absolutely excluded from consideration because of their race. Finally, the Court has already barred the use of race in employment to create role models for students.31
Race-Exclusive Classes and Extracurricular Activities
Any class or school sponsored extracurricular activity that limits or prefers students based on race in any institution that receives public funds is vulnerable under the Seattle/Jefferson County decision. Whether under certain circumstances students have First Amendment rights to form race-based groups in schools is more complicated.
Race-Focused Campus Housing
It would appear that theme-based campus housing, i.e., an Africa or Asia house, would be permissible and could add to campus diversity, but such housing could not bar or prefer any student based on race who chose to live there. Nor should a campus tolerate informal discriminatory practices.
Race-Focused Recruiting, Orientations, and Graduations
Justice Kennedy specifically endorsed “recruiting students and faculty in targeted ways” for diversity purposes. That would seem to encompass targeted advertising or visiting selected feeder schools, but much more suspect is the practice of subsidizing campus visits for some students based on race, or creating special summer programs and orientations for students who are selected according to race. Institutional sponsorship of race-based graduations or awards seems doubtful under the “goal of bringing together students of diverse backgrounds” that Kennedy approved.
Many public and private higher education institutions have purchasing programs that give preferences to firms owned by women and minorities. Sometimes, these are part of statewide programs. Others are particular to the institution. Since the Supreme Court decided City of Richmond v. J.A. Croson in 1989, these purchasing programs are valid only if they are narrowly tailored remedies to identified discrimination in contracting.32 Few academic institutions have such evidence of discrimination, and it would be difficult for them to acquire it for each purchasing category that covers everything from paper clips to computers to buildings to food services. Cuyahoga Community College and California State University, San Luis Obispo, lost cases when their preferential contracting programs were challenged.33 Expect some reconsideration and modification of race-based purchasing programs in both higher education and K–12 institutions. It is an also area where race neutral alternatives are abundant, but often underused.
Facts may be stubborn things, but in the eyes of some justices constitutional law seems to be infinitely malleable. The Fourteenth Amendment’s equal protection clause forbids states “to deny to any person within its jurisdiction equal protection of the law.” Similarly, the 1964 Civil Rights Act’s Title VI states, “No person in the United States shall on the ground of race…be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” As Justice Kennedy declared, “Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can take.”34 (at 2796)
In a zero sum game such as admissions, what aids one person or group harms others. According to Breyer’s opinion, however, the law should be interpreted differently when the racial classification benefits or includes minorities than when it disadvantages or excludes minorities. The impact on nonminorities is not discussed. Consequently, in this view any local school board that believes there are good educational reasons for using racial classifications in decision-making can do so. There were four votes on the Court for that proposition and no hint of any limits in the Breyer opinion on that local authority. For now, Breyer’s view is not the law federal courts and educational institutions should follow, but the composition of the bench will change.
The divisions in the Supreme Court place increased importance on the constitutional initiatives the American Civil Rights Institute will seek to put on the 2008 ballot in Arizona, Colorado, Missouri, Nebraska, and Oklahoma. Following the successful pattern in California, Michigan, and Washington State, these initiatives, if passed, will forbid the use of racial, ethnic and gender preferences in public education, employment, and contracting. After the split on the Supreme Court bench in the Seattle/Jefferson County cases, it is clear as a legal matter that such additional state constitutional protections are necessary. From a political standpoint, the American core value that individuals have the right not be discriminated against because of their immutable characteristics once again needs affirming.