Anthony Kennedy is sort of horrified by voluntary school desegregation.

Oral argument from the court.
Dec. 4 2006 7:02 PM

Affirmative Inaction

Anthony Kennedy is sort of horrified by voluntary school desegregation.

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Illustration by Mark Alan Stamaty. Click image to expand.

The two cases heard at the Supreme Court today, Parents Involved in Community Schools v. Seattle School District   and Meredith v. Jefferson County, descend from two lines of cases: the court's school desegregation cases, beginning with Brown v. Board of Education in 1954, and the court's school affirmative-action cases, beginning with University of California Regents v. Bakke in 1978. So, the question justices are asking this morning is: Are today's cases more like Brown (because they redress the shocking legacy of slavery), more like Bakke (because they deny white people opportunities based on skin color), or a head-on collision between the two?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

In the decades since Brown, school boards around the country strove to integrate their schools—sometimes by court decree and sometimes voluntarily—with an eye toward undoing the racial segregation that follows urban housing patterns. Today's cases involve a school district in Louisville, Ky., that was under a court order to desegregate until 2000 and thereafter elected to maintain a program of "managed choice" that strives for between 15 percent and 50 percent black enrollment from kindergarten to graduation. A second program in Seattle allocates high-school students to one of their top three school choices, using race as one of several "tiebreakers" for oversubscribed schools. Parents in each district filed suit when their kids were denied access to their preferred schools, claiming the school districts' plans unconstitutionally violate the 14th Amendment because they base admission on race. Both plans were upheld in the courts of appeals.

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The United States takes the side of the parents during each of two hour-long arguments this morning, which you can listen to here. Transcripts are here and here. What is rapidly clear is that these cases are less about doctrine, or even social science, than about visceral impressions. These plans are, to the justices, either a noble continuation of the court's fine work in Brown or a vile means of reducing small children to the color of their skin. Harry Korrell *, who argues for the Seattle parents, starts with the "over 300 children denied admission to their chosen schools solely because of their race." Michael Madden, representing the Seattle School District, opens with the "harmony and mutual respect" that children imbibe when they attend racially diverse schools. And that's pretty much the way it goes all morning.

The visceral feelings of the justices aren't much of a surprise, either. A bombastic Justice David Souter insists "this is not an affirmative action case" because everyone gets to go to a school here, even if it's not necessarily the school of his or her choice. As Justice Stephen Breyer puts it, there's no "prize" on offer, so the affirmative-action cases involving coveted college slots are not relevant. Justice Ruth Bader Ginsburg tries to out-Roberts John Roberts by suggesting that nobody in these cases has legal standing to even be in court. Then, she wonders how the Constitution could mandate the use of race in school desegregation one day and prohibit it the next? Breyer asks Solicitor General Paul Clement if he is an education expert. "Lots of schools are becoming more and more segregated" and the school boards should be entrusted to resolve the problem. "Why," he asks, "does the Constitution require us, the judges, to go in and tell them to take black children out of school?" Justice John Paul Stevens wonders if it's also unconstitutional to take race into account when hiring teachers. Souter asks why schools shouldn't be able to use racial factors openly. "Can they do it candidly or do they have to do it by clumsier means?" he asks.

The conservative justices on the court are, for their part, equally sickened by this practice of—to quote Roberts last spring—"divvying us up by race." Justice Scalia is at his sardonic best, asking the lawyer for the Seattle school board whether it would be permissible for the government to foster diversity by encouraging "people to move into Little Italy" and have "street festivals." Justice Samuel Alito is affronted by the Seattle policy of lumping Asian, Latino, and black students together as "nonwhites." Would a school composed of 60 percent Asian and Latino students and 40 percent white students be "racially balanced?" he wonders. Scalia asks whether a child with a white grandfather is considered white. And Chief Justice John Roberts says that if every single student still gets a place in school, "How is this different from separate but equal?" Justice Clarence Thomas seems to lean forward to speak in the final two minutes of argument. Hearts stop. But then, he apparently changes his mind.

And since you are wondering about the visceral feelings of Justice Anthony Kennedy—the guy who will again swing the 4-4 court one way or another—well, he makes his feelings fairly plain: "In Grutter [one of the Michigan affirmative-action cases], we said racial balancing is patently unconstitutional. That seems to be what you have here."

He later suggests, "Characterizing each student by the color of his or her skin, that should be a matter of last resort." And "the question is whether or not you can get into the school that you really prefer. And in some cases that depends solely on skin color. It's like saying everyone can have a meal but only people with separate skin can get the dessert." Wait. Isn't dessert a prize?

In the Michigan affirmative-action cases from 2003, Kennedy says, the justices "ran as far away as we could from using racial quotas." He worries that even if the school boards here are acting in good faith, "an insincere school board that wants to play the race card  … can make decisions based on an individual student's race."

Kennedy, in short, looks poised to do that thing he does—close the constitutional door to everyone but Elijah. He looks like he is about to write an opinion that says there is a compelling state interest in desegregating schools but that the systems in Louisville and Seattle give him the heebie-jeebies. He will add that he looks forward to some future hypothetical case in which some school district somehow remedies racial imbalances without accounting for race.

This brand of jurisprudence is the Kennedy blue-plate special. He is officially waiting for the perfect facts before he decides environmental cases, racial gerrymandering cases, and possibly voluntary desegregation cases, too. He'll agree with the liberals in theory, agree with the conservatives in specifics, and nobody will know what to do about anything.

Outside the court this morning, hundreds of protesters swarm the plaza chanting what sounds to me like: "Roberts, Alito, Scalia, and Thomas … bladah yappa lappa doop." What they should perhaps be chanting instead is: "Two-four-six-eight, Justice Kennedy, make up some constitutional rules—you're driving us freakin' crazy."

Correction, Dec. 5: The article originally misidentified Harry Korrell as Harvey Korrell. (Return to the corrected sentence.)

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