Thursday, June 28, 2007

Preliminary Thoughts on the Schools Cases

This morning, the Supreme Court issued its expected decisions in Parents Involved v. Seattle School District (05-908) & Meredith v. Jefferson County Board of Education (05-915). The basic holding isn’t a shock to any follower of the Court. Five justices say the integration plans were unconstitutional, four disagree.

But what’s been missing from the popular media coverage is that this case is hardly a landmark, for a number of reasons. (These are very preliminary thoughts since I'm actually at work and read the opinion over my morning coffee here on the West Coast).

1) It’s a 4-1-4 opinion. Justice Kennedy’s opinion is thus the controlling one, and it hardly shuts down the use of race, but rather uses a lot of ambiguous language about how and when race can be used. Further, diversity remains a compelling interest the Roberts, Kennedy, AND Stevens/Breyer opinions. Roberts’ opinion pretty much says “balance” is not a compelling interest, but

2) The majority did not hold that a school cannot consider race at all in any of these opinions, despite the headlines going around. It held that these two school systems’ programs were impermissible. Don’t get me wrong, I have no idea what would be permissible, but there’s room to remain.

3) We’re basically in a stricter Gratz/Grutter paradigm. Gratz/Grutter was an incomprehensible combination, that basically held that diversity was a compelling interest, but had a tougher narrow tailoring requirement. We were in strict scrutiny already. Remove Justice O’Connor from Gratz/Grutter, and Kennedy, who was against both of those programs, becomes the center of the Court. I actually think he moved closer to the center in his opinion than he was in the Michigan cases.

I defer to SCOTUS Blog, but reading the reactions of some of the “winning” parties, I think you can see how narrow the decision was.

I’d also note the unusual circumstance that essentially all 3 of todays opinions were controlled by Justice Kennedy’s opinions. We kind of knew Kennedy would control the fate of the Court, but it’s still very unusual.

I’m not going to pretend this is a “good” decision for those embracing a progressive view of civil rights and the constitution. But I didn’t expect a good decision from this Court. I think on the range of outcomes that were likely, this is “less bad” than it could’ve been. It also indicates a slowing down of the Rehnquist Era. True, there’s one more conservative seat in play, but the wishy-washiness of this opinion is a product of Roberts, in my mind.

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