A Supreme Court Conversation

Parsing the All-Powerful Kennedy Concurrence
An email conversation about the news of the day.
June 28 2007 6:29 PM

A Supreme Court Conversation

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Dear Dahlia and Stuart,

Justice Kennedy's controlling opinion turns entirely upon his conclusion that having government make an actual determination of an individual's race is a technique that is fundamentally different from other approaches that seek to promote integration. He would permit (while the four justices in the Roberts plurality would forbid) specific race-conscious steps—such as drawing race-conscious attendance zones so as to maximize integration—that do not require classification of a particular individual by race. In the key passage, he says that school officials concerned about racial imbalance in the public schools "are free to devise race-conscious measures to address the problem in a general way without treating each student in a different fashion solely on the basis of a systemic, individual typing by race."  Although integration is a compelling governmental interest according to Kennedy, it should never (or almost never) be achieved by means that require "a state-mandated racial label" to be imposed upon individuals.

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On the level of theory, I believe that Kennedy's aversion to individual racial labeling has something to be said for it. Dahlia, you may not remember our exchange on the Michigan diversity cases of 2003, but I suggested the distinction then that Kennedy relies upon now. I thought it possible to defend striking down the Michigan undergraduate program in Gratz v. Bollinger but upholding the law school program in Grutter v. Bollinger. The key fact was that at the law school, each member of the admissions committee looked at all the factors of each applicant and decided how much weight to give to any and all aspects of the individual's background. Neither the law school committee as a whole nor any individual member was ever required to determine an applicant's race. Under the mechanical point system of the undergraduate school, however, some official could be called upon to classify exactly what race a person of complex racial grandparentage was in order to determine whether or not to award the 20 points for minority status. Justice O'Connor's controlling opinions in the two Michigan cases did not expressly turn on the presence or absence of a requirement of individual racial classification. But I thought she instinctively saw that difference. Now Justice Kennedy has made that explicitly the basis of the distinction he is drawing.

One important aside: A significant aspect of Justice Kennedy's opinion is that he essentially saves the Michigan Law School decision permitting some use of race in higher education admissions. Kennedy in 2003 voted to strike down the law school as well as the undergraduate programs. His Grutter vote, coupled with those who joined the Roberts plurality, would now be enough to undo the court's approval of the law school's affirmative action program. But by focusing on individual racial classification as the key, Justice Kennedy has now endorsed an approach that sustains the split outcome in Grutter and Gratz. That may explain the otherwise curious passage in Kennedy 's opinion in which he says, "If those students [in Louisville, Ky., and Seattle] were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application." The notion that public school assignments—in Louisville, it's mainly elementary school assignments—would take into account a whole range of individual characteristics, like a college admissions program, is wholly unrealistic. Yet perhaps he goes out of his way to make this point to signal that he now accepts Grutter and that he would not vote to overturn that decision.

Although I understand Justice Kennedy's aversion to race-based programs that require individual racial classifications, I still believe him to be wrong in voting to invalidate these programs on the basis of what is essentially a theoretical objection. The distinction just doesn't matter in practice in public school assignment programs. The issue was resolved at oral argument, when Justice Scalia raised the issue with counsel for the school board in the Seattle case.

Scalia asked, "What criteria of race does the school, just out of curiosity, does the school district use? I mean, what if a particular child's grandfather was white? Would he qualify as white or non-white?"

The Seattle school board's counsel responded that this was just not an issue. The plan, he said, "allows the parents to self identify, and the record in this case through the testimony of petitioner's precedent is that they were aware of no abuse of that."  When it comes to public school pupil assignments, this response seems very plausible. There is no government committee making racial classifications, and unlikely ever to be one in this context. At the end of the day, these two programs fall by virtue of Justice Kennedy's vote on the basis of a concern that has no application in the real world of public school assignments.

Beyond that, I believe for all the reasons I stated in my two postings before the decisions came down that explicit use of race in this context advances the goals of Brown. Nothing I read today convinces me otherwise. Stuart invokes the specter of saying to a child: "Sorry, you're the wrong color." But it is a fundamentally different matter to say, as the South did before Brown, "Sorry, you're the wrong color because you are an inferior being whose presence would contaminate the school," and to say, "Sorry, you're the wrong color for this school assignment because we are attempting to bring the races of our city together and it's important to have a lot of kids of different color." It's very different, especially when it is a very occasional event, not part of a systemic, pervasive regime of subjugation. In its bottom line, Justice Kennedy's opinion declares it unconstitutional for a school district to use the most effective means of achieving an integrated school system. Finding that this violates the 14th Amendment belies both text and history, and turns Brown upside down. His opinion looks good only by comparison with the plurality opinion of the chief justice.

Walter

Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.