The following post is from Michael E. Rosman, General Counsel, Center for Individual Rights. CIR submitted an amicus brief in the Seattle schools case.

I’d like to briefly comment on the dissents and some of the points made by others on this site concerning the school decisions.

1. Ben Winograd has questioned Justice Stevens’s provocative peroration, to the effect that all of the Justices who were on the Court in 1975 would have disagreed with the decision, and specifically states that “one could reasonably debate” what then-Justice Rehnquist would have done. Some of the comments disagreed.

At the outset, of course, precisely what Justice Stevens is saying is unclear. Is he suggesting that the vote would have been 9-0 if the case had been decided in 1975? Or that, those same Justices, were they all alive today some 32 years later, would still disagree with the majority? People and times do change, so I’m not sure those are the same questions.

In any event, Justice Rehnquist was a hard Justice to predict, so I think Ben’s “could reasonably debate” assertion is surely correct. After all, who could have predicted his opinion in Dickerson? And there is another Justice on the bench in 1975 for whom one could reasonably debate how he would have decided the school cases: Potter Stewart. In Minnick v. California Dep’t of Corrections, 452 U.S. 105 (1981), the Court considered an affirmative action program adopted by the California Department of Corrections that apparently set goals for the hiring of women and various racial or ethnic groups. The Court ultimately dismissed the writ because the judgment of the state court appealed from was not final. Justice Stewart dissented, asserting that at least part of the state court judgment was final and that the state court “has wrongly held that the State may consider a person’s race in making promotion decisions . . . So far as the Constititution goes, a private person may engage in any racial discrimination he wants, . . . but . . . a sovereign State may never do so. And it is wholly irrelevant whether the State gives a `plus’ or `minus’ value to a person’s race, whether the discrimination occurs in a decision to hire or fire or promote, or whether the discrimination is called `affirmative action’ or by some less euphemistic term.’” Justice Stewart went on to quote his dissent in Fullilove v. Klutznick at length and to the effect that the government “may never act to the detriment of a person solely because of that person’s race.” (My emphasis in both quotes.)

Obviously, a school assignment program is a different factual context, but those are pretty sweeping statements. Justice Rehnquist concurred in the dismissal of the writ as improvidently granted, but stated that he would have joined Stewart’s opinion if he believed the judgment of the state court had been final. I think one could reasonably debate how each of those Justices would have decided the school cases in 1975, much less today.

2. Bob Driscoll asserts that Justice Breyer’s opinion is “strict scrutiny” in name only. I agree, and would point out two additional pieces of evidence for this. First, the Court has repeatedly said that under “strict scrutiny,” the compelling governmental interest must be the actual interest that motivated the governmental actors. See, e.g., footnote 9 in Gratz, where the Court quickly dismissed the possibility that the race-conscious admissions program at the University of Michigan could be justified as a means of remedying past discrimination, a point that had been raised by intervenors in the case, but not by the University. Justice Breyer nonetheless posits all kinds of possible justifications for the programs in Seattle and Kentucky including the remedying of past discrimination – that the schools themselves disclaimed. (Is anyone else puzzled by Justice Breyer’s vote in Gratz to find the system unconstitutional, especially in light of his dissent yesterday?) Second, note how many times Justice Breyer refers to outside articles and studies which purport to prove that the systems at questions were narrowly-tailored to achieve a compelling governmental interest, and how infrequently he refers to the actual record. Both, it strikes me, are earmarks of a lower level of scrutiny.

3. I remain convinced that the opinions of both the Chief and Justice Kennedy are fairly narrow, and that there is not much difference between them. All the language about “racial balancing” and “racial diversity” as compelling governmental interests cannot obscure the following facts: The Chief’s opinion does not, as far as I can tell, reject the proposition that significant educational benefits can be a compelling governmental interest under the Fourteenth Amendment. Justice Kennedy does not, again as far as I can tell, accept the proposition that racial diversity for its own sake is not a compelling governmental interest. (For that matter, I think the dissenters probably would agree with that statement.) Both opinions concluded that the school districts had not demonstrated that their programs were narrowly-tailored to achieve significant educational benefits. Whether that means that the school districts’ “true” motivation was really “racial balancing” for its own sake, or whether that means the school districts were not sufficiently careful in demonstrating in the record that their programs were designed to use race only to the degree necessary to procure the professed educational benefits, strikes me as a semantic distinction.

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