The School Cases

Certain unnamed parties requested that I post something coherent about the recent Supreme Court decision in Parents Involved v. Seattle School District. It's been all over the news. It's either a long-awaited return to reason and sensibility by the new hero of the right, Chief Justice John Roberts, or a dreadful backsliding return to the wretched days of segregation by the new villain of the left, Chief Justice John Roberts. Or it's neither. I'm pretty sure it's neither.

Like most posts of this sort this is a long one, so you'll get the rest after the jump. A lot of people would write this and say, "I don't claim to be an expert, but, here's what I think anyway." Not me. I actually claim not be an expert, in fact, I am specifically not an expert. But I'm also not a partisan ideologue. More erudite discussions of this case can be had at the Volokh Conspiracy and SCOTUSBlog, in the blogroll to the right, if you are so inclined. If you disagree with my interpretation on a substantive basis because I have my facts wrong, please do correct me. If you wish to debate my viewpoints keep it civil.


The decision came to 185 pages and had five authors. It's here if you wish to be driven insane. It's worth noting that this was not a 5-4 decision. It was a 4-1-4 split (like a 7-5-10 in bowling), and the most important part of the decision is that penned by the 1 in the middle, Justice Anthony Kennedy (no relation to Teddy and Bobby and Jack.)

There were two cases. In both of them, students in the applicable school districts have some degree of school choice, in the sense that they may apply to schools other than those in which they are districted. I'm not familiar with the particulars; being a Florida boy I'm used to the notion that about the only chance you have not to go to your districted school is to have a parent who teaches at another school in the district, and that's the only other school you can go to. Certain special circumstances sometimes prevailed but by and large we didn't have school choice. I'm inclined to argue these people should all just shut up and come down to a really bad school system and see how much they want to complain about how they did it back home. But that's just me.

The Seattle school district classified all students as either white or non-white and used the classification as a determinant in whether their applications to given public schools were accepted. All schools in the district had target limits for "white" and "nonwhite" students--so that, in other words, no school in Seattle was permitted, under the plan, to have more than (making up numbers here) 60% white students, or more than 60% nonwhite students. However, there were no "quotas," no goal of a set amount of diversity, and all schools had the same limits. Students applying to a school well within the racial-diversity goal range were assured of acceptance; schools that did not meet the racial diversity goal could not accept students of the wrong race. That said, students were not ordered out of neighborhood schools that did not meet the diversity goal. The entire case was based around students willfully applying to attend non-neighborhood public schools that did not meet the district's racial diversity goal.

The Jefferson County district (Louisville, KY), did exactly the same thing, with one key difference: they created racial classifications consisting of "black" and "other." Thus in Seattle, and black kid, a hispanic kid, and an Asian kid were the same thing. In Louisville, a white kid, a hispanic kid, and an Asian kid were the same thing. Fundamentally the programs were the same, although Louisville's was at all school levels and Seattle's seems only to have operated at the high school level.

Most of the commentary out there has been on the Seattle case, mainly because everyone seems to think Jefferson County got it wrong when it created its race categories (black and non-black) and its case was doomed anyway. Or else nobody thinks Kentucky is worth talking about. Could be either one.

My facts may not be completely right on these two programs, but this is as I understand it. In any event, though, you can see what was at issue: Can a school district approve or deny your application to a non-neighborhood public school solely on the basis of your race?

The school districts both argued they can. Promoting racial diversity in schools is a compelling state interest (cite numerous examples from case law starting with Brown v. Board) and the method for doing so doesn't unduly discriminate against people because A) presumably all the public schools are the same now, right? After Brown? Right?, and B) the districts did not use quotas (illegal by several Supreme Court decisions), and C) the system was "narrowly tailored," meaning race was only an important factor in a few uncommon situations and not a determinant across the board. The Seattle district said that because the plurality of students in the district are white, their two categories were created to ensure that the students of the plurality did not predominate in certain areas. Jefferson County, which was under a federal desegregation order from 1964-2001, said that the students of concern were black, the issue of concern was quality of predominantly black schools, and therefore their racial category addressed that issue and did attempt to discriminate against students individually.

Both school districts were a little loopy. Seattle had white and non-white, but the majority of students in the district were non-white and there were in fact more Asian kids than blacks or hispanics. Ergo, under the Seattle program, black kids and hispanic kids--the two racial groups most likely to come from poor economic situations--were the same as Asian kids, who predominantly (in Seattle anyway) came from better socio-economic strata than white kids. So a school could be fully integrated, under the Seattle plan, if it was (say) 50% white and 50% asian. Meanwhile another school in the poor part of town might be 40% white, 25% black, 25% hispanic, and all poor, and be equally integrated in the eyes of Seattle as the white-asian school.

This is pretty silly, but it's not really unconstitutional.
The Jefferson County case was brought by a black child seeking to attend a predominantly black school in another neighborhood, who was not admitted because the school was already too black. Just like the girl in Greenville you mentioned. Also pretty silly, but not unconstitutional.

Now then, there were five opinions. What might have been the majority opinion was penned by Chief Justice Roberts. He is pretty harsh. He argues, to begin, that while integration is a compelling government interest, it does not apply in either case since Seattle was never ordered to desegregate and Jefferson County's desegregation order was dismissed in 2001. Therefore, by his reasoning, unless the federal government decrees a school system is segregated by race and orders it to desegregate, it is unconstitutional to use race to integrate a school system.

By itself this presents school districts with a bit of a catch-22, but Justice Kennedy rescues them later on.

Elsewhere, Roberts makes a lot more sense, at least if you ask me. In sum his argument is that schools can not use race as the sole determining factor in school admissions, which was essentially the case here. Obviously neighborhood schools are required to accept students from within their district, so leaving that aside, non-district students applying to a school were assigned a racial classification, upon which their admission depended. If a school was happily integrated the racial classification mattered not--but then, neither did any other classification. But if a school was not satisfactorily diverse, then race was used to determine admission. At its most basic level, this means that race was the sole determining factor, and that has been decreed unconstitutional for quite some time.

Roberts notes at one point--I'll paraphrase--that if the goal is to be race-blind in school admissions, then the proper way to achieve that is to in fact be race-blind in school admissions.

Roberts would not prevent schools from considering race in other ways--collecting data on race to guide statistics, for example. But he would not permit a school district to consider race in any way as it relates to an individual student in choosing whether or not to send a student to a particular school. The key here is that an individual student's race must not be a consideration.

Justice Thomas, in a concurrence, goes much farther, and would limit school districts from
using race in any way. Though he is not explicit on the matter, I would take from his concurrence that school districts shouldn't even gather data on race, and that using race to guide the drawing of district boundaries would be entirely forbidden. This is pretty standard stuff for Thomas and has gotten very little coverage in the press.

On the other side, Justice Breyer writes a fairly irritated dissent, in which he takes issue especially with Roberts' notion that it's improper to use race except when under orders to desegregate. This is where he brings up Brown and claim's the majority's opinion (not really a majority, though) would turn back the clock. Breyer argues that in fact the school districts in question are within constitutional bounds, per A, B, and C above. The dissent argues that reasoning such as apparent in Chief Justice Roberts' opinion presents a slippery slope back from Brown.

Breyer's reason relies largely on existing court precedent. Existing precedents, created over half a century of integration case law, argue that racial categorization must serve a "compelling interest," which he finds in these cases, and be "narrowly tailored," which he also finds they are, and in fact argues they are so clearly narrowly tailored he doesn't even bother to explain how. They meet the prevailing definition of narrowly tailored because, as I noted above, they don't apply to all students, only to out-of-district students applying to schools that do not meet the district's definition of integrated. By rights of precedent (stare decisis in the legalese), Breyer is correct. Additionally, Breyer argues that

real-world efforts to substitute racially diverse for racially segregatedschools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are“conscious” of the race of individuals.

What he's saying is, going back to the Constitution to try to fix a nuanced problem like this that the founders never anticipated (the writer of the document was a slaveholder after all) is using a 2x4 to swat flies. Whether you agree with him or not is the key point in how you feel about this decision.

This is also the distinction between the "liberal" and "conservative" legal theories. The "liberals" would have it that the Constitution is a neat little guide and all, but really, it has to live and breathe with the times or it will become hopelessly outdated and totally uncool, plus some of the stuff in there is like way old, you know? The "conservatives" argue that the constitution is more infallible the Walter Cronkite and God Almighty combined and any attempt to read any nuance into its aged script is nothing short of blasphemy, and we shall live in the 1780's for all eternity the way the Founders intended.

Most of the commentators screaming about this decision fall into one of these two intellectually simplistic camps, because they're intellectually simple themselves. The Justices are not so easily pigeonholed.

Justice Stevens writes an even more annoyed dissent and joins in Breyer's dissent but, ultimately, has little different to add.

So the key writer here, indeed the key Justice--indeed, the most key Justice in 40 years (he was in the majority in 69 of the 71 cases he heard this term)--is Justice Kennedy, and his opinion, although not officially the opinion of the court, is the one that matters.

Justice Kennedy joins Chief Justice Roberts in the majority, and so the two school districts have to go back to the drawing board and come up with another way to ensure racial diversity without discussing race. As do many other school districts around the country, no doubt. But Kennedy provides more leeway than Roberts. Kennedy argues that racial integration is a compelling interest for all school districts no matter what, regardless of whether they're under a desegregation order or ever have been or not. In other words, though Roberts--who wrote the "court's" opinion, says otherwise, in fact the Supreme Court did NOT decide that integration is not a compelling interest, because Kennedy sides with the dissent, making that portion of the case a 5-4 the other way. Thus even though Roberts wrote for the majority, Kennedy is the real author of the decision here.

Kennedy goes on to say that white/non-white (or black/non-black) is not sufficient racial classification in a diverse school district. If indeed a school district has only two races, then fine, but in Seattle's case in particular the largest racial subgroup after whites was asians, and whites in any case were not a majority. Kennedy thus argues as that a situation such as I described above might be legal under Seattle's plan but did not at all amount to true diversity or integration--and since integration and diversity were the compelling interest, it didn't suit the district to half-ass matters.

Furthermore, although race should not be used as the sole determinant as it was in these cases, it may be used even unto the point of dealing with individual students as long as the district has taken other factors into consideration apart from race. He even goes on to suggest possible ways school boards can achieve integration without use race as a direct determinant in student admissions. School boards could, for example, explicity site new schools based on expected racial makeup of the neighborhood, or could even redraw districts so that "neighborhood" schools took in kids from a more balanced group of neighborhoods. To what degree this sort of racial gerrymandering of school districts would be permitted is not stated, but we can assume it would have to be a very gentle gerrymander to pass any reasonable scrutiny, since at some point a neighborhood school ceases to be such. (Note that Justice Thomas would rule this out in any case.)

Kennedy suggests school districts could assign all students to schools randomly by lottery. In a geographically small district this could be quite effective but would almost certainly be riotously unpopular with parents and students (and hence politicians). That said, as in the Seattle case the school board could have simply admitted non-district students on the basis of a lottery, since in reality the numbers of such students probably were not so high as tip the balance of diversity much in any direction.

Kennedy's opinion carries the day. Integration and diversity are still compelling government interests that school boards may pursue. They may not use race exclusively in pursuing those interests to determine which school a child will attend, but they may use race as one factor among many in siting new schools or drawing boundaries, and may continue to be creative in finding ways to ensure diversity.

Ultimately this is neither a disaster nor a great victory. Instead, like most Supreme Court cases, it's sort of a change and hardly the whole story.