Analysis: Justice Kennedy and a Warning Against Overreading the School Cases
One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement.
Here is what is clear from Justice Kennedy’s opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race. Op. at 2 (rejecting the plurality’s failure to “acknowledge that the school districts have identified a compelling interest here”); id. at 17 (“A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.”).
Second, and relatedly, the Constitution does not require color-blindness. Op. at 7 (refusing to join the “parts of the opinion by The Chief Justice [that] imply an all-too-unyielding insistence that race cannot be a factor”); id. at 8 (acknowledging Justice Harlan’s dissenting view in Plessy that “[o]ur Constitution is color-blind,” but concluding that “it is regrettable to say, it cannot be a universal constitutional principle”).
Third, direct racial classifications like those in the Seattle and Louisville programs are subject to strict scrutiny and may be employed only after other alternatives are first explored and have failed. Op. at 9 (“[I]ndividual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.”); id. at 10 (these programs are unconstitutional because “the schools could have achieved their stated ends through different means”); id. at 16 (in the case of “de facto discrimination,” “[t]he State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here”); id. at 18 (“[M]easures other than differential treatment based on racial typing of individuals first must be exhausted.”).
Fourth, and on the other hand, certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny review and are per se constitutional. Schools may take account of race in such decisions as “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.” Op. at 8. These are “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race” (id.), as distinct from “[a]ssigning to each student a personal designation according to a crude system of individual racial classifications” (id. at 9). These approaches can be employed “with candor and with confidence that a constitutional violation does not occur.” Id.
Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question.
Justice Kennedy thus states that schools may employ not only the “facially race-neutral means” discussed above but “if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component,” an “approach [that] would be informed by Grutter.” Op. at 10. Such a system would “consider[] race as only one factor among many,” whereas the Seattle program “relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings; distance from schools; and race.” Id. at 12. “If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application.” Id. at 12-13. Justice Kennedy continues: “Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classifications.” Id. at 18. See also id. (rejecting “[c]rude measures of that sort”).
The ambiguity exists in Justice Kennedy’s statements that such approaches may be employed “if necessary” and that Grutter would have “some application.” The better view, I think, is that Justice Kennedy would still require as a “first option” the various efforts at increasing diversity (such as school siting) that do not involve the express use of race as a factor in widespread school assignment. If those programs do not succeed or can be reliably shown to be unlikely to succeed standing alone, districts can consider race as one factor among many that look to students as individuals rather than just members of racial groups. Only if that effort fails may the government turn to programs like those in Seattle and Louisville.
Tom,
I have not finished reading the opinions yet, and I do not want to put words in your mouth, but do you mean that Justice Kennedy’s opinion is controlling in part? The reason I ask is because five justices have joined the plurality opinion with respect to Parts I, II, III-A, and III-C. Justice Kennedy’s opinion is controlling, to the extent it is different from and narrower than the plurality with respect to Parts III-B and IV.
I don’t mean to challenge the substance of your post, because as I said I am not finished reading the opinions, but consistent with the Marks rule, Justice Kennedy concurred in part and concurred in the judgment in part, meaning that some parts of the plurality (or majority) opinion are indeed controlling.
Comment by David Stras — June 28, 2007 @ 1:10 pm
As Breyer’s dissent makes perfectly clear, if the use made of race in these cases cannot be justified, there is no use of race which can be found justified. We are left in the same state as in political gerrymandering, Kennedy in theory remains open to the use of race but not on any basis known in law or fact.
Comment by Roger Friedman — June 28, 2007 @ 1:36 pm
Does Kennedy’s concurrence reflect the views that the Court has at some point in time espoused?
Specifically, I doubt that the 4 in the plurarity agree with Kennedy’s view; thus, unless there is in fact some common ground among the 5 regarding Kennedy’s points (or if the Court has in the past espoused Kennedy’s view), I don’t see how his views would be “controlling.” If there is some narrow issue that was agreed upon by all 5, and the pluraity just took it a little further, and Kennedy didn’t go as far, then I could see that narrow issue is controlling; but if the plurarity and Kennedy are diametrically opposed regarding the portion of the opinion that Kennedy did not join, I don’t think Kennedy’s views should control…
Did that make any sense?
Comment by Andy Grewal — June 28, 2007 @ 1:37 pm
Kennedy’s opinion is concurring in the sense that Justice Powell’s opinion in Bakke was controlling.
Comment by Marc Shepherd — June 28, 2007 @ 2:04 pm
to continue my Q:
What if there were four concurrences? would kennedy’s still be “controlling” because in some sense he provided a fifth vote? I would assume not.
It seems weird to me that the views of the 4 are subservient to the views of the 5th, just because the 4 voted together. Don’t we have to establish some commonality between all *five* to establish that a concurring opinion is controlling? If Kennedy concurred in judgement only, and wrote his own opinion pretty much, would be say that trumped the understandings of the other four?
I haven’t read the opinions — just wondering about the possible effect of a concurring opinion that contradicts or is inconsistent with the plurality. i don’t know that kennedy’s concurrence is contradictory/inconsistent with the portion of the plurality which he did not join, but I think it’s an issue worth examining.
Comment by Andy Grewal — June 28, 2007 @ 2:18 pm
Andy,
This is perhaps one of the most difficult rules to apply (and does not always work well), see, e.g., Price Waterhouse v. Hopkins, but the Court said in Marks v. United States that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”
That means that, even though Justice Kennedy’s point of view may not have the support of even a single other Justice, his opinion, to the extent it concurs in the judgment and is the narrowest, is controlling for lower courts under the Marks rule. I personally think it is a terrible rule, and is terribly unhelpful in many cases (which is why I am writing an article about it), but it is a longstanding, important and frequently applied rule, as the presence of several fragmented decisions in just the last few days alone demonstrates. And Mark is right that it controlling in the sense that Justice Powell’s opinion in Bakke was controlling.
Comment by David Stras — June 28, 2007 @ 2:24 pm
Well, in its Grutter decision the Supreme Court said that Justice Powell’s opinion in Bakke was NOT controlling (under the Marks rule).
Here, some of the limits on the use of race in the decision are shared between Kennedy and the plurality, and thus are a holding (see Parts III-A and III-C).
But Kennedy’s separate thoughts might or might not be controlling under the Marks rule as refined by Grutter.
Comment by Hans Bader — June 28, 2007 @ 3:41 pm
“That means that, even though Justice Kennedy’s point of view may not have the support of even a single other Justice, his opinion, to the extent it concurs in the judgment and is the narrowest, is controlling for lower courts under the Marks rule.”
Well, my question then, insofar as III-B is concerned, does Kennedy’s opinion actually concur in any part of III-B, or is there just violent disagreement?
We all know that I, II, III-A and III-C have the imprimatur of the Court. The question is, what to do with the material in III-B? If Kennedy’s views of III-B conflict with the plurality’s, it seems silly to say that Kennedy’s views control insofar as we are concerned with the subject matter of that Part. (I suppose I should have made this clear in my earlier post).
Comment by Andy Grewal — June 28, 2007 @ 4:20 pm
Andy,
You’re right that, to the extent that there is absolute and undeniable disagreement between Justice Kennedy and the plurality on a particular point, the Court has given us no guidance on how to treat such a case. Again, I am still wading through the opinions carefully, and have been researching in Justice Pierce Butler’s papers for the last three hours, so I cannot give you a firm answer, but this presents one of the many problems with the Marks rule. I need to read more carefully, but if your characterization is correct, we may not have a controlling opinion in this case on the issues covered in Part III-B. Tom seems to come to a different conclusion, so again I need time to sort all of this out.
Comment by David Stras — June 28, 2007 @ 4:43 pm
David–
Thanks for your thoughts. I look forward to reading your article.
Comment by Andy Grewal — June 28, 2007 @ 4:57 pm
Some parts of Part III-B of Roberts’ opinion are the holding of the court, even though Kennedy doesn’t join Part III-B, because Kennedy separately repeats some of the same principles and limits on the use of race contained in Part III-B.
So although Justice Kennedy didn’t join in Part III-B AS A WHOLE, pieces of Part III-B of Chief Justice Roberts’ opinion are holdings of the Court under the Marks rule.
Comment by Hans Bader — June 28, 2007 @ 5:49 pm
Andy,
One other point as there has been a lot of confusion in the media and even in the blogs as to what is “controlling” over the past few weeks. A concurring opinion, by itself, is never controlling. When a Justice concurs, it means that he/she has joined the majority opinion. To the extent that the concurring opinion contains a different gloss than the majority, that opinion contains the views of only a single justice, or at least some number less than the majority.
Such an opinion can be analogized to legislative history that helps interpret the text of the statute. It might be useful for some judges in interpreting the statute, but the text itself is what is controlling. Likewise, the majority opinion is controlling, and the concurring opinion can give you a helpful gloss on the majority opinion, but again, the concurring opinion is not controlling.
The answer is entirely different, however, when you have an opinion concurring in the judgment. When that happens, the concurring Justice does not join the majority or plurality opinion. And if there is no opinion that commands five votes, then we look to plurality opinion or the opinion concurring in judgment, whichever is narrowest, to provide the controlling rule. Determining what is “narrowest,” however, is often the hardest part of the Marks problem.
Comment by David Stras — June 28, 2007 @ 5:52 pm
According to n.5 of Justice Thomas’ dissent in Panetti, none of Monday’s decisions constitutes controlling federal law. So who knows.
Comment by Roger Friedman — June 28, 2007 @ 7:15 pm
but if the plurarity and Kennedy are diametrically opposed regarding the portion of the opinion that Kennedy did not join, I don’t think Kennedy’s views should control…
Neither should 4 votes for control when there are 4 votes against. What you have then is NO LAW.
Comment by Jacques McKenzie — June 28, 2007 @ 7:55 pm
to the extent that there is absolute and undeniable disagreement between Justice Kennedy and the plurality on a particular point, the Court has given us no guidance on how to treat such a case.
It is equivalent to a 4-4 with a recusal.
Comment by Jacques McKenzie — June 28, 2007 @ 7:57 pm
Rather, a “4-4 because of a recusal.”
Comment by Jacques McKenzie — June 28, 2007 @ 7:57 pm