Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result. Kennedy suggested in a separate opinion that the Chief Justice’s opinion, in part, “is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion.”
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote. On the two school plans, the majority found that the districts have “failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts.”
Justice Kennedy recited from his separate opinion, in which he declined to join the Roberts opinion as it discussed the lack of a compelling interest in achieving racial balance in public school classrooms. The Chief Justice’s opinion notes that Seattle was never officially segregated by race, and that Louisville is no longer under a court order to desegregate its once-segregated system. Kennedy said in his concurrence that ending racial isolation may sometimes be a compelling interest in public education, and can be pursued with race as “one component” of the plan to achieve racial diversity.
I say “almost” because Kennedy’s concurrence is necessary for the opinion to hold, and while Roberts, Alito, Scalia, and Thomas seemingly think that there is no compelling interest behind racial diversity, Kennedy is not willing to go there. This is seemingly inconsistent with Kennedy’s dissent in Grutter v. Bollinger, not that that’s a bad thing.
The Century Foundation (via Kevin Drum) has made a compelling case that the time to end race-based affirmative action has come and that income-based preferences produce better results without much acrimony. But one of the main reasons such a system works is that it creates racial diversity in much the same way that race-based affirmative action does. The point still stands that racial diversity is a worthwhile and necessary goal for schools both public and private, and for four Supreme Court justices to denigrate it so is distressing and harmful.