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Multiple Choice

Anthony Kennedy punts on the question of school diversity

If you want to understand the Supreme Court's ruling last week on public school diversity plans, don't bother reading Chief Justice John G. Roberts's all-too-strident opinion for the court. Don't bother either reading Justice Stephen Breyer's altogether-hysterical dissent. For that matter, you can skip over the opinions by Justices Clarence Thomas and John Paul Stevens too. The only opinion that matters is Justice Anthony Kennedy's controlling concurrence.

And here you have a bit of a problem: It veers pretty close to meaningless gibberish.

Because Kennedy in this case, as in so many others these days, represents the decisive fifth vote for any potential majority, his opinion is pretty important. As a consequence, every school board that wants to consult student race by way of ensuring diverse classrooms is today scrutinizing it for its meaning. They're all on a fool's errand. As a piece of guidance for lower courts and potential litigants, Kennedy's opinion is among the worst pieces of legal writing I have ever seen in a case of this magnitude and importance.

No significant statement in it goes unqualified. It announces no coherent rule that any school system could apply with confidence that it will garner Kennedy's vote in the future by doing so. The opinion often seems to have been written by two different justices who disagree on the merits and yet agree to collaborate by alternating paragraphs. Only Kennedy's self-contradictions interrupt his ponderous pomposity. The result is that, for all the talk that the Seattle and Louisville cases will greatly alter the playing field for school districts, nobody today has a firm idea of whether or under what circumstances school districts may take account of race in making school assignments.

The nightmare begins in the first paragraph, where Kennedy declares that he regards "the state-mandated racial classifications at issue ... [as] unconstitutional as the cases now come to us" (emphasis added). The implication clearly is that had the classification "come to us" in some other way, he might not be voting to strike them down. In the world of law, this sort of sentence suggests that a legal test is coming down the pike--that is, a set of conditions under which school districts can and cannot use race as Seattle and Louisville tried to. And Kennedy seems to be heading in that direction. In the next paragraph, he announces that parts of Roberts's opinion--which would disallow racial classifications of students altogether--are "inconsistent in both ... approach and ... implications with the history, meaning, and reach of the Equal Protection Clause." (Kennedy joined other parts of Roberts's opinion.) And he goes on to reject Breyer's dissent as "advanc[ing] propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles." Kennedy's broad position, therefore, is reasonably clear: Both a flat ban on race-consciousness and a broadly-deferential judicial posture toward it discomfort him. He is looking for a Third Way.

But he does not look hard enough. Over the succeeding pages, he agrees with the liberals that achieving diversity is a compelling state interest--"depending on its meaning and definition." And he says specifically that "[r]ace may be one component of that diversity"--though he insists that "other demographic factors, plus special talents and needs, should also be considered." He complains that Roberts's opinion "is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling" and declares that "to the extent [it] suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken." He disagrees that "[i]n the real world" the colorblind Constitution can "be a universal constitutional principle."

Most concretely, he insists that school districts are free "to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race." He identifies a set of practices that, while "race conscious," should not, in his view, attract probing judicial scrutiny: "strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; and tracking enrollments, performance, and other statistics by race."

At the same time, he complains that both Seattle and Louisville failed to rigorously account for their particular uses of race in school placements. He argues that the general race-conscious policies he okays are different from "[a]ssigning to each student a personal designation according to a crude system of individual racial classification." And he describes that latter approach as "among the most pernicious actions our government can undertake."

But does he ban it? Not quite.

That most pernicious of practices, he intones, "may be considered legitimate only if [it is] a last resort." The state, he writes, "must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here." What sort of showing? Kennedy doesn't say. How much diversity can racial classifications be a last resort to reach? No clue. For that matter, what exactly does Kennedy mean when he says that "measures other than differential treatment based on racial typing of individuals first must be exhausted"? Does that mean that if Seattle drops its racial classifications, relies on alternative means of the sort Kennedy approves, and sees as a result substantial backsliding toward de facto segregation that the justice would then approve more or less the same practice he just struck down? Or does it mean something more restrictive--a sort of code for the message, "I'm not going to say never, but try again at your peril."

Your guess is as good as mine. And truth be told, I doubt Anthony Kennedy has much of an idea either. His opinion reads like the work of a man who considered this question to be just too damn hard. So, unwilling either to live with the rules the other justices were contemplating or to articulate one himself, he responded essentially by telling school districts around the country to try again and ask him later.

Even those who disagree with the position Roberts and Thomas articulated in this case, as I do, should be able to respect it. It represents a coherent vision of what equal protection means. And I suspect that, notwithstanding the rhetoric both within the dissents and among liberals outside of the court, school districts that wanted under it to find ways of promoting classroom diversity without violating its terms could do so reasonably quickly. Similarly, the dissenters proposed a coherent rule that answers the question at hand, one that would essentially defer to local school boards on the use of race in class placement. Had either the liberals or the conservatives prevailed, the court would have left many people deeply unhappy, but it at least would have done its job.

Somebody needs to remind Kennedy what that job is. Asked at the time of his nomination what the constitutional role of the Supreme Court was, the ever-grouchy Byron White famously barked, "to decide cases." This essential task is precisely what Kennedy's opinion does not do.

By Benjamin Wittes