The following commentary is from Alan Foutz, Pacific Legal Foundation. PLF is amicus and part of petitioners' legal teams for both cases; PLF attorneys participated in every phase of the Seattle case including the oral argument when the Seattle case was before the Washington Supreme Court.

After a preliminary review of this decision I'd like to first highlight the lone point upon which five justices agree.

Because the assignment plans in Seattle and Jefferson Co. did not take race into account as one of several factors designed to attain a broad exposure to diverse people, cultures, ideas and viewpoints, the rationale that was upheld in Grutter does not apply here. A finer point must be put on this, however. The Court said that the plans at issue used only binary classifications; e.g., black/other and white/non-white. By so doing, there is no way the districts could attain the "diversity" that they claim they are pursuing. So, Grutter does not apply because of the crudeness of the districts' classifications (a failure of strict scrutiny's "narrowly tailored" prong), not because the educational benefits of diversity apply to grade schools' in equal measure as the benefits that diversity bestows upon a diverse law school student body (the "compelling state interest" prong of strict scrutiny). Thus, five justices agree that the use of race as a dispositive and mechanically applied factor in public education is unconstitutional. This is so even if race is not the first or second factor being used to make a particular decision. As long as race ends up being the final "tiebreaker" it will be held an unconstitutional use of race.

I am coming to agree with Mike Rosman's analysis that there is not that much difference between the plurality opinion and Justice Kennedy's concurrence – in that the plurality can reasonably be read to focus on the narrowly tailored aspect of strict scrutiny. When C.J. states that the parties "dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits" it seems to me that C.J. is saying there is a debate over whether there is a compelling state interest in attaining a diverse student body. Of course, this is the question that would most significantly impact future desegregation plans and Fourteenth Amendment jurisprudence the most. So, it may end up being difficult to lay the entire blame for a uselessly narrow decision completely at the feet of Justice Kennedy. Justice Roberts may simply be making good on his confirmation hearing promises to issue narrow decisions.

Certainly, Justice Kennedy thought that the C.J.'s opinion "does not acknowledge that the school districts have identified a compelling interest here." I think the plurality can reasonably be read to do more than acknowledge the districts' failure to identify a compelling interest in diversity. The plurality clearly rejected diversity as a compelling state interest in the elementary school context, where the diversity being sought is defined by the general demographics of the district or the community. Because there is no connection between pedagogical benefits and the racial composition of the district, imposing on schools the requirement of reflecting the racial composition of the district does not pursue or achieve a compelling educational interest. Because this analysis stresses the connection between the pedagogical benefit and the race-conscious assignment plan, I believe this analysis actually addresses the "narrowly tailored" prong rather than staying with the compelling interest prong.

The plurality opinion comes closest to rejecting diversity as a compelling state interest in the final paragraph of IIIB, when it states "[h]owever closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled "racial diversity" or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using group is fundamentally at cross-purposes with that end."

This seems to be the concept with which Kennedy most forcefully disagrees when he states that "diversity, depending on its meaning and definition, is a compelling educational goal is a compelling educational goal a school district may pursue." That being said, it may very well be that the "meaning and definition" of diversity will make it very difficult to adopt race-conscious measures that meet constitutional muster in the elementary school context. Even the "race-conscious" measures that Kennedy endorses; e.g. targeted recruitment, strategic site selection, recognizing demographics of neighborhood when drawing attendance zones, come with the command that they must "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."

I think this decision will foreclose a significant number of race-conscious programs now being used in reliance on Grutter. However, the door remains open for elementary school districts to use race if pedagogical, as opposed to societal, benefits can be established by achieving a certain racial balance.

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