Dear Dahlia and Walter,
Warm thanks for inviting me to join your conversation, which I have been savoring from the sidelines. My only regret is that, for me, it will be harder to figure out the deep inner meaning of these two big school-race cases than it would have been to ruminate about what "Bong Hits 4 Jesus" means.
These are very hard cases, I think, both in terms of projecting their impact and in terms of figuring out who on the court comes closest to being right. As you anticipated, Walter, I have more doubts about race-based school assignments than you and Dahlia do. But I do hope to sweeten my contribution to the pot by ending this post with a not-so-secret plan that could achieve at least as much racial integration as the two programs that the court struck down—while running no risk of invalidation.
I generally agree that Justice Kennedy's controlling opinion leaves more room for school integration and affirmative action programs than one might think from the apocalyptic tone of Justice Breyer's dissent. How much more room? Kennedy is not at all clear on this. Indeed, much as I sympathize with his unwillingness to come down hard on either side, his controlling opinion will be of very little value to school officials trying to figure out what they are allowed to do or to lower courts trying to figure out what the law is. A friend observes, with some hyperbole: "Every sentence in his opinion contradicts the sentence before it."
Kennedy obviously hates the idea of anyone telling a child, "You can't go to this school because you are the wrong color." But he does not quite slam the door on all programs that do this, and unlike the plurality portion of Chief Justice Roberts, Kennedy sees a need for energetic governmental promotion of school integration.
In this respect, the Kennedy-in-the-middle Court has some resemblance to the old Sandra Day O'Connor-in-the-middle Court and the older Lewis Powell-in-the-middle-Court—the one that ended 20 years ago when Kennedy replaced Powell. The issues are different, the actual holdings are different, but the music is similar: O'Connor and Powell, like Kennedy, exuded the feeling that these are very hard issues and we should not come down too hard either on the "colorblind Constitution" side or on the "we worship diversity" side.
This is not to deny that Kennedy's newfound majority-making position shifts the court's balance to the right on racial issues from where it was when O'Connor was the majority maker—at least, that is, if we are talking about the O'Connor who wrote Grutter v. Bollinger in 2003. Kennedy actually seems very close to the O'Connor who concurred in Adarand v. Pena in 1996; since then, she moved ("evolved"? whatever) markedly to the left on race and other issues. It's also interesting that the chief justice is able to cite, accurately, quite a bit of Justice O'Connor's language in Grutter,such as her assertion that racial balancing for its own sake was "patently unconstitutional." While Grutter was seen as the high watermark for affirmative action, O'Connor's residual doubts about race-based programs give plenty of ammo to the conservatives.
I share Justice Kennedy's concern about the Roberts plurality's "all-too-unyielding insistence that race cannot be a factor." I also find it hard to identify as conservative "judicial restraint" the plurality's apparent eagerness to rule out strategies that local school boards consider necessary to promote integration.
And I am less than confident (pending further study) that Roberts' opinion for the majority, as reined in by Kennedy, was right to reject the views of "two of our wisest federal judges" (as Justice Stevens aptly called them in dissent): Michael Boudin of the 1st Circuit and Alex Kozinski of the 9th. Both have blessed race-based student assignment plans that (in Kozinski's words) "give the American melting pot a healthy stir without benefiting or burdening any particular group." Both are Republican appointees.
At the same time, I also share Kennedy's sense that the dissenters' alarmist, accusatory, you-are-killing-Brown rhetoric was over the top; that the implications of their position would perpetuate "taking account of race" in all walks of life very far into the future; and that their distortions of the holdings of many prior cases were in some cases "baffling" and generally hard to take from people who have made stare decisisa mantra.
And benign as the Jefferson County, Ky., and Seattle plans that the majority struck down may look from a distance, the Seattle plan, at least, is not so pretty up close. I can see why Kennedy (and four others) thought they flunked the "narrow tailoring" test. Begin with the fact that these plans have not affected very many students and have achieved only a marginal, even "minimal" (Roberts' word), amount of integration. Add that they have not even touched Seattle's two nearly all-black, most racially isolated schools. Also add the oddity of the same Seattle school board blessing an "African-American Academy" that is nearly all-black by design even as it extolls racial diversity.
Of course, the plan's effect on relatively few students also shows that they don't impose burdens on many people. Still, some of the burdens that they do impose are pretty bad—not as bad as the days of de jure segregation, but bad enough. A Seattle student named Andy Meeks, for example, asked to be placed in one of three high schools that seemed most likely to help him continue to thrive—as he had in a middle-school honors program—despite his attention deficit hyperactivity disorder and dyslexia. But because he was white, he was denied all three choices and assigned to a school that he could reach only by taking three city buses, with a round-trip commute of more than four hours a day.
Does a slight shift toward integration warrant results such as this, when it's juxtaposed with the damage done by perpetuating the poison of allocating benefits based on race?
My doubts about these particular race-based plans are reinforced by the ease with which a measure of racial integration could be accomplished without race-based student assignments. This brings us back to my not-so-secret plan, which I sketched in a National Journal column (subscription required) after the oral argument last December:
But the news is not all bad for those of us who share the four liberal justices' sense that more racial integration would give many students better educations and foster interracial understanding and social cohesion.
There is another—perhaps better—way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students' socioeconomic status in making school assignments and to give underprivileged students—who are disproportionately black or Hispanic—the opportunity to attend middle-class schools.
Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.
Such socioeconomic integration is actually more effective than pure racial balancing at improving the academic performance of poor children of all races, studies show. …
And in many areas, 'socioeconomic integration also will produce a sizable amount of racial integration,' according to "A New Way on School Integration," [PDF] a recent paper by Richard D. Kahlenberg of the Century Foundation.
So, guys, how about it? Would it make more sense to pour integrationist energy into such programs (and their analogues in the university-admissions context) than to keep fighting over programs that tell children (and others): "Sorry, you're the wrong color"?