Supreme Indecision
Justice Kennedy's wishy-washiness has allowed race-conscious social engineering to continue in our public schools.


The judicial decisions of Supreme Court justice Anthony Kennedy often lack decisiveness; his writings tend to produce more questions than they answer. His opinion in last year’s cases involving school integration in Louisville and Seattle is no outlier in this regard, and as an article in this weekend’s New York Times Magazine revealed, the consequences of the court’s irresoluteness are proving unfortunate.

In June 2007, the Court struck down the race-based school-assignment policies of Louisville and Seattle. A four justice plurality agreed with the opinion of Chief Justice John Roberts, who found in the reasoning of those two cities’ school districts no compelling justification to tell students “where they could and could not go to school based on the color of their skin.”

Roberts’s words offered solid guidance. But their purposefulness was undermined by Kennedy, who cast the deciding vote in the integration cases and who agreed with only about half of Roberts’s opinion. Kennedy wrote his own opinion, therefore, in which he concurred that the assignment plans in Louisville and Seattle could not continue in their present forms but dissented, in flowery language, from Roberts’s conclusion that government should be uninvolved with racial tinkering.

“If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students,” Kennedy wrote, “they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”

Resolved: School districts may concoct general “race-conscious” ways to diversify their schools. But what does it mean?

This is the question over which public-school administrations from Bangor to Berkeley have pored for the past year, consulting with their lawyers about just how much leeway in designing school-assignment plans Kennedy’s murky opinion provides them.

This weekend in the Times Magazine, Emily Bazelon reported on their deductions. It appears that a school-assignment consensus — one in which students are allotted to schools based on the racial compositions of their neighborhoods and the socioeconomic classes of the students themselves (or of their neighborhoods) — is beginning to emerge and attract followers. Louisville is just one of several cities to recently embrace it.

Such an approach seems to satisfy the conditions that Kennedy set. It manages to be broadly “race-conscious” without ever considering the races of individual pupils. And by combining vague race consciousness with specific socioeconomic attentiveness, districts believe they are creating in their classrooms an even more diverse diversity, which will raise the academic achievement of poor students. Thus, unoccupied space on this bandwagon is quickly disappearing.

What a pity. The Supreme Court had an opportunity to erase race from school-assignment policies, but because of Kennedy’s words it succeeded only in catalyzing the creation of less blatant, more complicated methods of injecting race into the equation.


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