I have waited to post anything on the school cases because I wanted to spend the weekend thinking critically about the various decisions in the case and to permit time for all of our guests to post their thoughts. Many of the issues have been covered in detail, so I wanted to post my thoughts on an issue that many commentators have assumed as a result of Justice Kennedy’s opinion: that the use of racially-conscious alternatives to direct racial balancing or integration is permissible after the school cases. The laundry list of alternatives includes “strategic site selection of new schools; drawing attendance zones with general recognition if 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.”

It is probably clear from the list that some of the alternatives suggested by Justice Kennedy’s opinion are permissible, such as the tracking of enrollments, performance, and other statistics by race. I think that the keeping of such statistics is probably assumed by Grutter, and indeed much of the research done by my colleagues in the academy about the impact of race on schools, much of which is shared or financially supported through grants by governmental or quasi-governmental entities, would be drawn into doubt if such statistics could not be collated and analyzed. Tom Goldstein suggests that these alternatives, including drawing district lines with race in mind, are “per se constitutional,” see here, while Michael Rosman seems to suggest that some of these alternatives could be subject to strict scrutiny under the Court’s precedents, see here. With respect, I think that many in the media and blogosphere are putting way too much emphasis on Justice Kennedy’s separate opinion in these cases, and I will tell you why after the jump.


First of all, I agree with some of the sentiments shared on this site that there does not seem to be that much distance between the plurality and Justice Kennedy on most of the important issues in this case. Second, as a technical matter under the Marks rule, Justice Kennedy’s opinion is only controlling to the extent that it differs from Parts III-B and IV of the plurality opinion. As the Court’s description of the case and Justice Kennedy’s own characterization of his vote makes clear, Justice Kennedy joined Parts I, II, III-A, and III-C of the plurality opinion, and thus we have an opinion of the Court with respect to those sections. While Parts I and II are not particularly salient, Part III-A especially contains much of the limiting analysis concerning Grutter and its narrow tailoring analysis that Justice Kennedy seems to find persuasive. (As an aside, I wonder whether Part III-C of the plurality opinion, which examines the actual operation of the programs at issue in the case and seems a bit out of place and unnecessary to me, was added by the plurality in an attempt to retain Justice Kennedy’s vote.)

But to get back to my main point, many commentators seem to mistakenly assume the constitutionality of race-conscious alternatives on the basis solely of Justice Kennedy’s separate opinion. As a practical matter, I realize that many courts might take Tom’s approach and look to Justice Kennedy’s viewpoint as controlling on this issue. After all, one can safely assume that the dissenters would agree with Justice Kennedy that the use of race-conscious alternatives would be constitutional. But there are reasons to doubt this approach as a jurisprudential matter. As a general matter, vote-counting (or vote-guessing in this case) is only useful as a static matter–that is, a single change in the membership of the Court, as many have already noted with respect to the replacement of Justice O’Connor with Justice Alito, can radically change the jurisprudence of the Court in an area, especially one as closely divided as affirmative action. However, lower courts, when they decide the issue of the constitutionality of race-conscious alternatives, must decide over the long term (and perhaps over changes in the composition of the Court) whether such alternatives are constitutionally permissible. Indeed, absent en banc review, the decision of a panel of the United States Court of Appeals is binding on future panels. It is true that the Supreme Court can correct any errors in this area, but it is dangerous for lower courts to be in the business of vote-guessing on an issue that the Court never expressly decided.

That brings me to my second point. Giving controlling weight to Justice Kennedy’s pronouncements in this area might be especially dangerous given that his statements on racially-conscious alternatives can be, at best, considered dicta. It is clear from the plurality opinion that the constitutionality of race-conscious alternatives was not at issue in this case: “These other means–e.g., where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools–implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity–not even in dicta.” If Justice Kennedy’s pronouncements were necessary to the decision in this case, then it could be argued under Marks that his views on racially-conscious alternatives should be given controlling weight by the lower courts. However, given that his views were dicta and that the other members of the plurality expressly declined to decide the constitutionality of race-conscious alternatives, I find it somewhat surprising (and even dangerous for unsuspecting school districts) that commentators are almost uniformly willing to give controlling weight in all respects to Justice Kennedy’s separate opinion in the school cases.

That raises an interesting academic question: Are we so used to the power wielded by the swing vote in our era of a deeply fragmented Supreme Court that we assume that, without more, what is said by the swing Justice is controlling in all respects? Because of the various rules at play in these cases, it has always seemed to me that the swing Justice already has too much power. As a result, I find it absolutely fascinating that we are so quick to give Justice Kennedy even more power and discretion than the Court’s rules actually require.

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