Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.

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6 Responses

  1. Ian Samuel says:

    I agree. I posted something similar at Greyhame; I think this will be another split-the-difference pair, with one scheme upheld and the other scheme not.

  2. Michelle says:

    You beat me by a few hours. Great minds think alike!

  3. Shavar Jeffries says:

    Kozinski’s position seems farfetched. The Supreme Court’s approach to strict scrutiny, unfortunately, is much more formalistic: The Court does not decide whether to apply strict scrutiny on the substantive basis of the extent to which a classification racially stigmatizes one group or another; rather, after Croson and Adarand, the Court reflexively applies strict scrutiny whenever race-conscious decisionmaking is involved irrespective of the kind of racial harm caused by a particular classification.

    I surely would prefer an equal-protection clause in which judicial scrutiny turned, at least in part, on a qualitative evaluation of the kind of racial harm at issue, but the conservative majority of the Supreme Court has already foreclosed that possibility.

  4. Michelle says:

    I agree that Kozinski’s position seems “farfetched” particularly when you factor in Johnson v. California, which reaffirmed that strict scrutiny should apply to all racial classifications. Except . . . note how Kozinski distinguishes Johnson, essentially saying it was about forced “segregation” so, of course, strict scrutiny should apply. But in this case, there is no such “baggage,” and he argues that “there is much to be said for returning primacy on matters of educational policy to local officials.” Extremely shameless plug — Kozinski is essentially adopting a theory I floated in The Last Wave of Affirmative Action, Wisc. L. Rev.(1998). Obviously, Kozinski is “out there,” but his emphasis on local control may appeal to Kennedy, and his theory provides cover allowing Kennedy to occupy the vital center — where of course much of the power is.

  5. Simon says:

    The Supreme Court’s approach to strict scrutiny, unfortunately, is much more formalistic: The Court does not decide whether to apply strict scrutiny on the substantive basis of the extent to which a classification racially stigmatizes one group or another; rather, after Croson and Adarand, the Court reflexively applies strict scrutiny whenever race-conscious decisionmaking is involved irrespective of the kind of racial harm caused by a particular classification.

    I tend to think that is very much a good thing, myself. Scalia’s concurrences in the two cases you cite are some of the most powerful things he’s written on the bench, and I am at a loss to understand why you seem to use the term “formalist” as if it were an epithet.

  6. Shavar Jeffries says:

    Simon,

    I don’t think formalism on matters of practical significance is a good thing. Not all racial classifications are created equal precisely because the social reality of the way race affects our society is determinant and contextual.

    There’s a broad social distinction between laws designed to subordinate historically stigmatized groups and laws designed to counteract the effects of that subordination. As Justice Stevens wrote in his Adarand dissent, the empty formalism espoused by Scalia “disregard[s] the difference between a ‘No Trespassing’ sign and a welcome mat.'”

    Formalism results in the same standard being applied to classifications that are wildly dissmilar in social and cultural import. Whether a court should find constitutional any particular set of race-conscious decisions by government is of course a different question. But the formalism that essentially ignores the social realities of racial harm and deems any racial classification — irrespective of the quality of the harms it generates — presumptively invalid is of an altogether different order.