The facts and decision: The majority opinion by (as to some of the issues) by Chief Justice Roberts stated gave this summary of the facts: “The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’s race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari, and now reverse.”
In the portions of Chief Justice Robert’s opinion that Justice Kennedy joined (thus forming the five-member majority), the Court held that the plans at issue triggered strict scrutiny since a student could be denied transfer to a school based on the basis of his or her race. Under the strict scrutiny analysis, the Court kept to its standard formulation that the school district must establish a compelling interest and demonstrate that the means to used to accomplish that interest are “narrowly tailored.”
The Court divided, however, on what might constitute a compelling interest. The Chief Justice, joined by Justices Scalia, Thomas, and Alito agreed that government has a compelling interest is remedying past discrimination and providing “student body diversity in the context of higher education … not focused on race alone” but instead encompassing “’all factors that may contribute to student body diversity.’”
Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg saw the case as remedying the “resegregation of the schools.” They would uphold the school district’s plan based on their view that school districts have the power “to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it.” Since the case did not involve the sort of “race-based harm” featured in other discrimination cases, the dissent argued that strict scrutiny should not apply: “I believe that the law requires application here of a standard of review that is not “strict” in the traditional sense of that word, although it does require the careful review I have just described.” Assuming that strict scrutiny did apply, the dissent argued that the compelling interest in remedying past discrimination was not different in kind from “voluntary desegregation.” “[N]othing in our equal protection law suggests that a State may right only those wrongs that it committed.” Thus, the dissent argued that the state was free to use race-based student assignment to cure “de facto segregation” or “racial isolation.”
Justice Kennedy, who provided the fifth vote to find the programs at issue unconstitutional, took a different view. He argued that school districts did a have a compelling interest to avoid “racial isolation” and to achieve a “diverse student population.” Although Justice Kennedy agrees that race can be a factor in that diversity, he argues that other demographic factors and individual characteristics must also be considered. Thus, Justice Kennedy concludes that the government may not, absent a showing of necessity, “classify every student on the basis of race and to assign each of them to schools based on that classification.”
For school districts left wondering what they are allowed to do under this 4-1-4 decision, Justice Kennedy offers the following activities that he believes are constitutional. First, school boards are free to devise “race conscious measures” so long as they are not used to treat “each student” differently on the basis of race. Instead, the “race conscious measures” that Justice Kennedy would approve include: “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.” Since, according to Justice Kennedy, these measures do not lead to different treatment based on race they need not be reviewed under strict scrutiny.
Assuming that one can look at a 4-1-4 decision and find any resolution at all, one issue left unresolved by the Court was what it takes for a plan to be “narrowly tailored.” The plurality opinion and Justice Kennedy agree that one element of narrow tailoring is “necessity.” The government must make some showing that the racial classification at issue is “necessary” to achieve the identified compelling interest. Neither opinion reveals what type of showing is required other than to say that the school districts failed to make it in this case.
A second element of narrow tailoring identified by the plurality is a showing by the government that it has “considered methods other than explicit racial classifications to achieve their stated goals.” According to the plurality the Jefferson School Board failed this part of this test because it “failed to present any evidence that it considered alternatives.” Justice Kennedy noted that the limited impact of the plans under review “suggests that the schools could have achieved their stated ends through different means.”
This could lead to some interesting issues of proof in challenging government programs that classify on the basis of race. Is it enough for the government to make a record at a legislative hearing that it considered and rejected race-neutral alternatives? Or can the challenger put on expert testimony to prove that the government end could have been achieved without the challenged classification. Justice Kennedy’s opinion certainly seems to suggest the possibility of that approach