ACSBlog: The Blog of the American Constitution Society

Jim Ryan, Professor of Law, University of Virginia School of Law

A quick reaction to today’s decision in the Seattle and Louisville cases:

            It is easy to conclude that today’s decision is a defeat for those interested in maintaining or increasing racial integration in public schools.  After all, a majority of the Court struck down two plans – one from Seattle and the other from Louisville – that used race in an attempt to integrate schools.  But this reaction misses the more important and surely more enduring principle contained in today’s opinion:  school districts can use race-conscious measures to achieve integrated schools.

            That principle is contained in Justice Kennedy’s opinion, which is the controlling opinion for the Court.  Justice Kennedy accepts that achieving diversity and overcoming racial isolation in public schools are compelling interests.  He concluded that the use of race by Seattle and Louisville was too crude, involving individual classifications that divided students into white and black, or white and other.  He explicitly endorses, however, a host of other means by which race can be taken into account, including race-conscious drawing of attendance zones, race-conscious siting of schools, and recruiting students in a “targeted fashion.”  He also endorses the consideration of race of students as one of a number of factors when determining student assignment.

If this sounds somewhat familiar, it should. In many ways, Kennedy’s opinion is like Justice Powell’s opinion in Bakke. Powell, like Kennedy, disagreed with all of his other colleagues, and wrote an opinion for himself that was nonetheless controlling. Powell rejected the notion that race-based affirmative action programs should trigger little scrutiny, and he rejected the notion that race-based affirmative action programs should never be allowed. Instead, he concluded that race could be taken into account when admitting students to universities, provided that students were considered on an individualized basis and race was one factor among many. 

            At the time Bakke was decided, it, too, was easy to interpret as a defeat. After all, the Court struck down the immediate plan at issue in that case, just like it struck down the plans at issue in the Seattle and Louisville cases. Over time, however, it became clear that Justice Powell’s opinion provided ample opportunities for universities to take race into account, in a careful and narrowly tailored way, when admitting students. Affirmative action admissions programs on college campuses not only survived, but flourished and still exist today.

            In thinking about the Seattle Schools case, one would do well to keep Powell’s opinion in Bakke in mind. At the end of the day, the real story here is not that these plans were struck down, despite what tomorrow’s headlines might say. The real story is that the Court, through Justice Kennedy, approved the careful and considered use of race-conscious measures to achieve integrated schools. The Court, in other words, did not prohibit the use of race, but explained how it could be used. On a day when many who champion school integration will find reason to feel dismayed, I should think the example of Justice Powell’s opinion in Bakke should give them cause for cautious optimism. After all, Powell’s opinion ultimately mattered more than the specific plan struck down in Bakke. So, too, I would predict, will Justice Kennedy’s opinion matter more than the specific results in these cases.

(Crossposted at Supreme Court—School Integration)