Commentary: Racially Conscious Alternatives For School Systems and the Power of the Swing Justice
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.
David, i agree that the media is likely making too much of AK’s opinion re the issue of what type of AA plans are likely to pass muster in the future. The media should collectively remember that AK quite forcefully dissented in the Grutter case, where race was used merely as a “plus factor” in law school admissions.
It may be that proponents of AA won’t be able to find an actual AA plan, one that produces the “critical mass” of minorities they desire, that will pass Kennedy’s muster.
From a liberal point of view, the “solution” might be to hope a democrat is elected in 2008, and then they can appoint liberal justices who will uphold the kinds of plans that Kennedy opposes.
Comment by steve jaros — July 3, 2007 @ 10:52 am
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.
Perhaps that highlights the illegitimacy of the plurality opinion.
Comment by Jacques McKenzie — July 3, 2007 @ 12:17 pm
Incidentally, I meant to add that the type of dicta found in Justice Kennedy’s separate opinion is the stuff of circuit splits. I would not at all be surprised if the Court was forced to deal with one of these alternative race-conscious measures over the next five to ten years, although one can never tell for sure with the Court’s declining docket. The validity of such measures may rest on the composition of the Court at that time rather than any stare decisis effect given to the lone voice of Justice Kennedy in the school cases.
Comment by David Stras — July 3, 2007 @ 12:54 pm
The validity of such measures may rest on the composition of the Court at that time rather than any stare decisis effect given to the lone voice of Justice Kennedy in the school cases.
That is prescient. You think, then, that the practical result is the lower courts will work this out, relying on Kennedy’s opinion to split the hairs a bit more finely, and when such a case is taken up by SCOTUS again, there may be a new composition probably determined by the next Presidential election?
Comment by Jacques McKenzie — July 3, 2007 @ 12:58 pm
If, as you say, the discussion of race-conscious alternatives is dicta, there’s no reason why lower courts couldn’t apply the principles in Justice Kennedy’s opinion in a case that presented the race-conscious alternatives question. The plurality certainly didn’t make any law inconsistent with those principles. Neither pluralities nor dicta can make law. So you can’t deny, I take it, that lower courts are *free* to follow the principles in Justice Kennedy’s opinion.
All the work in this post, then, is done by the phrase “controlling weight.” Your point is that lower courts aren’t *bound* to follow Justice Kennedy’s opinion. It seems to me that there is a persuasive argument that they are. From at least the time Swann was decided until last Thursday, local school districts had the power to use racial classifications in order to integrate their schools. The Court last week took that back, but Justice Kennedy’s concurring-in-the-judgment opinion shows the limits of the Court’s retreat from that principle. Racial classifications to integrate schools, the Court says, trigger strict scrutiny. But Justice Kennedy’s opinion makes clear that the Court’s retreat does not extend so far as to invalidate (or trigger strict scrutiny of) merely race-conscious efforts at integration. There weren’t five votes to change the law on that point, so the law didn’t change. (Note that the discussion confining Swann and the prevailing legal assumptions it reflected to dicta appears in the plurality part of Chief Justice Roberts’s opinion.)
-Sam Bagnestos
Comment by Sam B. — July 3, 2007 @ 1:57 pm
Sam,
That is absolutely right and I appreciate your comment. Most of the work in this post is about the “controlling weight” language that was found all over the blogosphere. In fact, after I wrote this post, I went to at least three other blogs that used that language to describe Justice Kennedy’s discussion of race-conscious alternatives. Lower courts can decide for themselves whether they would like to follow the dicta in Justice Kennedy’s opinion; they are certainly not bound by anything that he wrote on the subject.
I also think that you make a fair point. It is unclear the extent to which racial-conscious policies still work in the school context. The Court does not decide that question, as I say above, but there is strong language from the plurality that any such classifications may be suspect, as you recognize in your comment. In fact, I don’t have access to Westlaw right now, but didn’t a plurality in Bush v. Vera recognize that some such alternatives, such as redrawing district lines, could require strict scrutiny under certain circumstances?
But, in any event, the lower courts are no more bound to follow the plurality in either case as they are to follow Justice Kennedy’s approach. You may be ultimately correct though that logic dictates that we go back to Swann, which may be the last time a majority of the Court spoke to these questions.
Comment by David Stras — July 3, 2007 @ 3:21 pm
Jacques,
We know that you do not like the result in this case, as you have made abundantly clear in other comments, but I think you missed the point of the italicized language.
My point was that Justice Kennedy’s opinion discussing race-conscious alternatives is not binding and thus not entitled to any deference under stare decisis. We all know that the Court is at least somewhat political (possibly even stronger language is warranted here), as much of my work points out, but the Court is at least theoretically confined by prior binding decisions of the Court. The point is not that a newly-composed Court will decide these questions, it is that that new Court will not owe one scintilla of deference to Justice Kennedy’s opinion. If anything, the deference goes to what is left of Swann after the Parents Involved cases.
Comment by David Stras — July 3, 2007 @ 3:29 pm
We know that you do not like the result in this case
I’m a bit unclear, actually, by what you mean when you say I do not like the result. I don’t like how the result was reached and how the plurality was drafted. As I tried to make clear in a post that you responded to, I haven’t reached a final opinion on whether Thomas or Breyer has the better argument on policy. Nor have I criticized Kennedy’s opinion.
Kennedy voted to invalidate both programs.
Comment by Jacques McKenzie — July 3, 2007 @ 3:53 pm
The point is not that a newly-composed Court will decide these questions, it is that that new Court will not owe one scintilla of deference to Justice Kennedy’s opinion. If anything, the deference goes to what is left of Swann after the Parents Involved cases.
I understood this very well, and I earlier made a comment that Parents Involved results in no law. My point about the upcoming Presidential election is that assuming personnel changes will be made by the next President, the yeoman-work on this issue will be mainly decided by lower courts on the basis of Kennedy’s opinion and the new personnel will have those legal materials to contend with. I would imagine that would function as some level of constraint on either liberals appointed by a President Obama or conservatives appointed by a President Thompson. But unless the next President is a conservative at least as conservative as Reagan whose SCOTUS appointments come once the Republicans regain the Senate, the plurality is virtually worthless. Not because I dislike partisan entrenchment in disguise, but as an empirical matter. But that the plurality is really political seeding is part of what I dislike about it. That has nothing to do with the outcome.
Comment by Jacques McKenzie — July 3, 2007 @ 4:06 pm
Jacques,
Thanks for your comments, and I apologize for misstating your view on the Parents Involved cases. To all our readers, I wish you a happy fourth.
Comment by David Stras — July 3, 2007 @ 7:35 pm
David,
No apology needed. I found your posts and willingness to debate in the trenches of the comments refreshingly generous and particularly enlightening. Thanks for providing me with the pushback necessary to clarify and refine my viewpoint.
Comment by Jacques McKenzie — July 3, 2007 @ 8:39 pm