Slate's Bizbox
the breakfast table: An e-mail conversation about the news of the day.

A Supreme Court Conversation

the breakfast table
entries
123456789101112131415161718
from: Walter Dellinger
to: Dahlia Lithwick and Stuart Taylor Jr.

Parsing the All-Powerful Kennedy Concurrence

Posted Thursday, June 28, 2007, at 6:29 PM ET

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.

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

the breakfast table
entries
123456789101112131415161718
from: Walter Dellinger
to: Dahlia Lithwick and Stuart Taylor Jr.

Parsing the All-Powerful Kennedy Concurrence

Posted Thursday, June 28, 2007, at 6:29 PM ET
Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor. Stuart Taylor, a New York Times reporter from 1980-88, writes for National Journal and Newsweek.
Illustration by Rob Donnelly. Photograph of Justice Antonin Scalia on Slate's home page by Alex Wong/Getty Images.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

Remarks from the Fray:

This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."

This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"

--CaLawyer

(To reply, click here.)

I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.

I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.

--SlateSurfer

(To reply, click here.)

It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.

--rrfan

(To reply, click here.)

With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

--Tori_Fox-Hunter

(To reply, click here.)

The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.

So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.

The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.

--randy-khan

(To reply, click here.)

Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?

--Aagcobb

(To reply, click here.)

Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!

The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.

Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.

--Dilan Esper

(To reply, click here.)

(6/26)