The following entry is from Bob Driscoll, who represented Amicii Curiae David Armour, Abigail Thernstrom, and Stephan Thernstrom and served as a Deputy Assistant Attorney General in the Civil Rights Division of the United States Department of Justice from 2001-2003.

I find several things interesting about today’s opinions:

First, on a practical level, I do not think that the decisions provide much comfort for school districts that desire to engage in racial balancing of the type sought by Lousiville and Seattle. I am aware that much will be read into the Kennedy concurrence, but in my experience, the type of plans Lousiville and Seattle employed are near-exact replicas of remedial plans imposed by courts as a remedy for de jure segregation — and therefore are almost exclusively concerned with racial balance outcomes and will be hard to justify under any Grutter-type analysis. Moreover, the suggestion by Justice Kennedy that race may be used as “one factor” of many is difficult to comprehend in the K-12 public school context where assignment is not competitively-based. It will be interesting to see what districts and courts do in response to the Kennedy concurrence, but I do not think that this situation is analgous to Gratz and Grutter, after which admissions officers merely began to chant “one factor” while continuing to make essentially race-based decisions in the same manner that they had been. School districts will have a very hard time evading this decision if they disagree with it. While those who are skeptical of governmental race-based decision-making may not view the result in these cases as philosophically pure due to the Kennedy concurrance, it is nevertheless a practical victory in my view. I do not see many plans with maximum or minimum racial percentages surviving a well-crafted challenge in light of these opinions.

Second, although the Breyer dissent mouths the words “strict scrutiny,” it is clear that the dissenting Justices would apply some lesser level of scrutiny to “inclusive” governmental decision-making based on race if given the opportunity. Indeed, in discussing the social science research on the purported educational benefits of diversity, the Breyer dissent acknowledges a split in academic authority on the topic, yet then goes on to defer to school boards’ choice of what research to give credit to — I’m not sure what that means, but its doesn’t seem like strict scrutiny to me if a “compelling” justification can be articulated by choosing favorable social science research from a body of inconsistent studies (one can imagine the fun that could be had in selecting social science studies in the criminal justice field to justify race-based decsion making by the government). What is unclear is where Kennedy stands on how one defines a “compelling” interest. While he clearly finds “diversity” a compelling interest, he provides little insight as to whether he agrees with the rationale of the dissent with respect to deference to school boards or simply assumes that “diversity” in education is a compelling interest post-Grutter without reaching the question of what type of evidence must be presented to establish a “compelling” interest.

Finally, on a much broader level, I think the significance of these opinions may be that they will be viewed as the Court’s (or 5 Justice’s) signal that it rejects the notion Grutter opened the floodgates for a “diversity” rationale for race-based decision-making in any context. Given that 5 Justices took pains to distinguish Grutter, a higher ed admissions case, from the K -12 context, it seems to me that arguing that “diversity” outside of the educational context (employment, for example) can be a compelling justification for race-based decision-making just got a lot harder.