Implication of Ricci Argument for School Diversity Question

By Kevin Russell
on Apr 23, 2009 at 3:01 pm

Yesterday’s oral argument in Ricci v. DeSteffano, transcript here, was interesting in a number of respects, many of which will be covered in a more comprehensive post by another author. But one point is worth immediate and separate mention, a point that is not particularly central to the decision in Ricci but may have important implications in other areas.

And that is the status of Justice Kennedy’s suggestion in Parents Involved – the case involving race-based student assignments in public schools – that a school district could pursue its interest in a diverse student body without invoking strict scrutiny by consciously altering its district boundaries or through strategic site selection for its schools directed at changing the racial composition of the student body. No one else joined Kennedy’s opinion, although it is easy enough to presume that the dissenting Justices agreed with this view. But that left the question of whether a majority of the Court would apply strict scrutiny to such race-conscious but aggregate-level measures.

We may have gotten some indication at the Ricci argument yesterday that a majority of the Court would not apply strict scrutiny to such cases, with the Chief Justice providing a fifth vote.

The indication arose during a colloquy in which Justice Breyer was asking respondents’ counsel to compare the action at issue in Ricci – declining to implement the results of a promotion test – with the school boundary and site selection choices addressed in Justice Kennedy’s concurrence. Justice Breyer noted that he was drawing the examples from Justice Kennedy’s opinion because he viewed it as the “controlling opinion in Parents Involved.”

The discussion went on for a bit, before the Chief Justice interjected:

CHIEF JUSTICE ROBERTS: Can I get back just — just — since I don’t understand it yet, the distinction between intentional racial discrimination and race conscious action. I thought both the plurality and the concurrence in Parents Involved accepted the fact that race conscious action such as school siting or drawing district lines is — is okay, but discriminating in particular assignments is not.

The emphasized passage seems to make rather clear the Chief’s view that school districts are permitted to alter school district boundaries and strategically site schools for the express purpose of achieving racial diversity. (And further that he thought this was accepted by the other members of the plurality opinion in Parents Involved as well).

I have not been a close student of Parents Involved or its aftermath, but I had thought that how the Court would view such measures in a future case was a relatively open question. If that’s right, school districts considering such action might find some greater certainty from the Chief’s statements yesterday (although, of course, a question at oral argument hardly commits a Justice to taking the implied position in a future case, when the issue is directly presented and thoroughly briefed).