Perhaps the most critical interchanges of the day took place in response to Justice Kennedy’s questions about the permissibility of considering race in school siting decisions.
Justice Kennedy posited a situation in which a school board must build a new school. “There are three sites. One of them would be all one race. Site two would be all the other race. Site three would be a diversity of races. Can the school board, with the intent to have diversity, pick site number 3?”
The Seattle petitioner took the position that the Constitution barred the school board from basing its siting decision on the resulting racial make-up of the school. The Solicitor General, by contrast, responded that it “is permissible for the school to pursue” diversity by making such a race-conscious decision.
Justice Kennedy did not ask whether school districts could take the same approach in siting magnet programs – choosing a host school based on its racial composition (e.g., purposely locating the program in a predominantly minority school in order to attract white students).
That, of course, is the very purpose of magnet programs. Given the close similarity of the decisions, the answers presumably would be the same.
Justice Kennedy also did not ask about a third technique used frequently by school boards: setting the boundaries of the residential areas that “feed” particular schools in order to maximize the racial diversity of those schools. Indeed, the district court in the Louisville case observed that “[r]acial demographics have influenced [Louisville’s] boundaries” for schools and that elementary schools were clustered “so that the combined attendance zones, assuming normal voluntary choices, will produce at each school student populations somewhere within the racial guidelines.”If a school board can site a new school by considering the racial demographics of the residential areas that would send students to the school, it is hard to see why the same rationale would not permit consideration of race in drawing or redrawing lines for existing schools. There is no basis for distinguishing the two.
In terms of the strict scrutiny analysis, this line of reasoning would lead to an approach that (1) recognizes the school boards’ interest in promoting a diverse learning environment as a compelling one because of the important pedagogic and societal interests it promotes (indeed, there was little disagreement during the argument regarding the importance of the interest); and (2) concludes that some – but not all – race-based measures can satisfy the narrow tailoring test.
With respect to narrow tailoring, the key issue is what distinguishes race-based siting/line drawing decisions from the decisions challenged before the Court? Justice Kennedy commented that the latter involve “characterizing each student by reason of the color of his or her skin. That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.” Individualized decision-making with race as the sole criterion seems to be the element that triggers the greatest concern. That discomfort is certainly understandable. Student-by-student decision-making carries the greatest risk of stigmatizing particular students by placing a societal imprimatur on using race to categorize individuals. That could be a reason, as Justice Kennedy intimated, to require a much stronger showing to justify use of such measures.
On the other hand, does the distinction between the two types of decisions really justify a different constitutional rule (as opposed to perhaps requiring somewhat more in the way of justification)? All of the school board decisions just discussed involve precisely the same result – the allocation of students to particular schools based on race. It is true that the siting and districting decisions do not target particular students – but they can get very close, as when the judgment whether to include a particular residential block in one school zone or another turns on the race of the students who live in that block. For those particular students, any distinction seems simply to be a matter of degree.
Treating these techniques differently could lead to unanticipated results. As I mentioned, Louisville utilizes race-based line-drawing, but also allows parents to choose a different school, and uses the racial guidelines to prevent those choices from leading to resegregation. Prohibiting that check might force school districts to eliminate parent choice to preserve the educational benefits of diversity.
I think these insights are quite useful. In reading about the cases, I couldn't help thinking that what the districts were doing had close parallels to the decisions on where to put a school. To me, this is a crucial point that the Justices will need to address in their opinions. The analogy between the practices needs to be discussed and reconciled. I'm not sure I understand the legal basis for the Seattle district's views that "the Constitution barred the school board from basing its siting decision on the resulting racial make-up of the school," though.