The Supreme Court and Diversity

Editor’s Note: Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined an amicus brief in each of the school cases decided by the Supreme Court.

Last week the Supreme Court ruled that the race-based assignments made by the school districts in Seattle and Louisville were unconstitutional. Five justices voted for that bottom line, and that’s good news. But the fact that parts of the opinion written by Chief Justice Roberts–and joined in its entirety by Justices Scalia, Thomas, and Alito–were not joined by Justice Kennedy, who wrote separately, makes it necessary to do a close and careful read of the two opinions.

These cases dealt with efforts by public school officials to achieve more “diversity” by assigning students based on their race. But they may have an impact on higher education as well.

I should note at the outset that some commentators have opined that the outcome here is reminiscent of the Court’s 1978 Bakke decision–that is, both cases saw 4-1-4 splits, and so, these commentators say, the opinion by a lone justice (Powell in Bakke, Kennedy here) states what is, as a practical matter, “the law.” There are at least two important differences, however.

First, Powell’s notorious decision stood alone because it went off in a direction–that the educational benefits of “diversity” amount to a “compelling” interest–that was completely different from what the other eight justices wrote. Here, Kennedy’s rationale is more intermingled with Roberts’s, and indeed he joins Roberts some of the time, so you really have to read both.

Second, Powell’s rationale unfortunately allowed college administrators to claim that they were following the law with no easy way to keep them honest (since the reasons for university admission decisions are opaque to the outside world). Rules about who gets assigned to what public primary or secondary school, on the other hand, will be well-publicized. As a result, it will be much easier for parents to ensure that school boards are following the law than to get college administrators to stop using the sort of racial preferences that were struck down in the Bakke case.

So let’s proceed with a close reading of the Roberts opinion versus the Kennedy opinion. Readers who would like to follow along in my discussion as I cite different sections may do so by looking at the official opinions.

Once the discussion of the facts and jurisdiction is taken care of, Roberts turns to the merits. In part III.A, which Kennedy joins, Roberts begins by stating that strict scrutiny applies to the use of race here, and that in these kinds of cases, the Court has recognized only two interests as “compelling” — that is, constitutionally sufficient to justify racial classifications — namely remedying the effects of past discrimination and diversity in higher education. He then discusses why the schools here cannot rely upon the remedial rationale. And then he discusses why the Court’s 2003 Grutter decision–upholding racial preferences in university admissions as long as the preferences aren’t too mechanical — does not apply either. The main reason is that the diversity here is not the one-factor-among-many kind of diversity the Court approved in Grutter, but is instead simply a race-as-the-only-factor kind of diversity the Court has never approved.

In part III.B, which is the first part of his opinion that Kennedy declines to join, Roberts starts by acknowledging that Seattle and Louisville claim that “educational and broader socialization benefits” flow from the racial diversity. Roberts then notes that the parties and their amici dispute whether these benefits do in fact flow from racial diversity, but says the Court need not resolve this, since the racial classifications used by the schools are not “narrowly tailored” to those benefits.

It’s unfortunate that the Chief Justice did not choose to get into this crucial issue. The alleged “educational benefits” of the sort of contrived “diversity” that educational officials are so adamant about is the shaky keystone of the constitutional justification for allowing racial preferences in not only primary and secondary education, but higher education as well.

So what is it in part III.B that Kennedy does not like? I should note here that perhaps Kennedy thinks that ending racial isolation—or its flipside, promoting racial diversity—is a compelling interest per se: That is, it is not necessary for a school board to show that those ends are tied to an ultimate end in educational and broader socialization benefits. Or maybe that’s not what Kennedy thinks; he isn’t clear on this. But it is important to note that, even if he does think this, it is sort of compelling-interest-lite, since generally only means that are broadly race-conscious, and not those that actually classify individual students by race, are considered to be narrowly tailored to achieve it.

Then, in part III.C — which Justice Kennedy joins — Roberts again takes up the question of narrow tailoring. This part of the opinion focuses on the small number of students who actually end up being shuffled around, which calls into question why race needs to be used at all, and on the fact that the school districts didn’t give adequate consideration to alternatives.

The remaining section of Roberts’s opinion, part IV, is—until a ringing conclusion that claims the mantle of Brown v. Board of Education — simply a refutation of Justice Breyer’s dissent. Now, what is it in that that Kennedy does not like? The arguments in Breyer’s dissent that Roberts refutes all seem to be arguments that Kennedy rejects as well, and there is nothing I can see in the way that Roberts rejects them that ought to bother Kennedy.

But there is a paragraph in the middle of Roberts’s opinion that reserves judgment on the legality of certain race-conscious pro-diversity strategies—“where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools”—that apparently Kennedy would go ahead and endorse.

Thus, it is important that in his opinion Kennedy explicitly okays “strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.”

What it boils down to is this: Roberts declines to endorse some practices that are not at issue in this case; Kennedy wants to go ahead and say that they are permissible. So Kennedy is writing a separate concurrence and refusing to join parts of Roberts’s opinion because it does not contain the dicta – that is, language that involves matters really not at issue in the case–he would like.

And, again, it is interesting that the practices that Kennedy would endorse apparently would not allow school districts “to classify every student on the basis of race and to assign each of them to schools based on that classification,” since Kennedy rejects that. It is only race-conscious means that are nonetheless race-neutral on their face that Kennedy stresses he would allow to schools districts that wish to avoid racial isolation/encourage racial diversity.

These cases naturally lead to speculation about what the Court’s decision means for higher education. Although Chief Justice Roberts cited the Grutter decision, it is mostly to distinguish it, and he did not seem particularly warm toward it. Moreover, he made clear that he would not interpret it as a blank check for schools to use racial preferences. In particular, he took seriously its stated requirement that the “diversity” endorsed there really does use race as only one, limited factor, and that other, nonracial contributions to diversity need to be considered as well.

More fundamentally, the end aimed for must not be about race per se; it must really be about something other than simply reaching a politically correct racial and ethnic mix (ostensibly, in Grutter, better education). And he took seriously the requirement that, before race can be considered at all, there had to be serious consideration given to nonracial means to achieve the nonracial ends that are sought. All in all, there’s much of use here to those who would challenge racial preferences in higher education, as well at those in primary and secondary education.