Affirmative action is in his hands

EDWARD LAZARUS, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

AT THE START of his first full term on the Supreme Court, Justice Anthony Kennedy weighed a legal challenge to a policy in Richmond, Va., that reserved 10% of the city’s contracts for minority-owned businesses (Richmond vs. Croson). At the time, Kennedy was thought to be a potential swing vote on a court deeply riven by its views on affirmative action.

The court’s liberal wing believed that in light of the nation’s racist past, the Constitution’s promise of “equal protection of the laws” permitted -- indeed, almost mandated -- some degree of minority racial preferences. As Justice Harry Blackmun wrote in the Bakke case, in which the court cautiously ratified the concept of affirmative action in graduate school admissions, “To get beyond racism, we must first take account of race.”

The most conservative justices rallied around the opposite view. To get beyond racism, they contended, it was essential not to perpetuate a 200-plus-year mistake of letting government classify individuals according to race. Under their reading of the equal protection clause, the Constitution morally demanded colorblindness.

Kennedy struggled to find a middle ground. Although uncomfortable with affirmative action (and disdainful of Richmond’s program, which the court struck down), Kennedy, siding with the majority, rejected the argument that the Constitution categorically bars government from using race-conscious means to achieve such compelling policy objectives as remedying past discrimination. With respect to affirmative action, Kennedy suggested, the Constitution’s answer was not “never” but “almost never.”


Eighteen years later, on the eve of the court hearing its first set of affirmative action cases under Chief Justice John G. Roberts Jr., the battle over racial preferences continues. On the federal level, former President Clinton’s “mend it, don’t end it” approach remains essentially in place, though in several states, California and Michigan most notably, anti-affirmative action forces have imposed their version of colorblindness.

Inside the court, although some of the players have changed, the justices remain deeply divided about the means for achieving racial equality. And Kennedy has become even more pivotal to the fate of affirmative action.

Since Croson, the Supreme Court has upheld only one race-based program. Three years ago, to the surprise of many court watchers, it upheld the University of Michigan Law School’s program for using race as one non-predominant factor in admissions. Split 5 to 4, the court condemned racial quotas (as it had in Bakke) but ruled that the school’s “holistic” one-factor-among-many approach was a barely permissible way to advance what school officials had identified as the compelling interest in maintaining diversity in their classrooms.

The Michigan case, however, preceded Justice Sandra Day O’Connor’s retirement. She had provided the fifth vote (together with Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) to uphold the law school’s use of race as a plus in admissions.


Few expect O’Connor’s replacement, Justice Samuel A. Alito Jr., to follow her lead. From his days in the Justice Department of the Reagan administration, Alito has been a firm opponent of affirmative action. And much the same can be said of Roberts, who took over after William H. Rehnquist’s death and is thought to share his predecessor’s affinity for colorblindness.

As a consequence, all eyes are on Kennedy. In voting to strike down the Michigan Law School’s admissions program, he again rejected the standard of pure colorblindness and endorsed the idea that schools could seek racial diversity through a narrow, only-as-a-last-resort program of racial preferences. In his view, however, Michigan had failed this stringent test -- just as every other affirmative action program had since Croson.

The critical question is whether the programs challenged in the cases scheduled to be heard this week can somehow meet Kennedy’s thus-far unmeetable standard.

These cases concern the efforts of two public school districts -- one in Seattle and another in Louisville, Ky. -- to achieve a reasonable level of racial diversity in their classrooms while also allowing students to attend either neighborhood schools or schools of their choice.

High school students in Seattle initially get to select which of the district’s 10 schools they want to attend. Race comes into play when the school district evens out enrollment among oversubscribed and undersubscribed schools, with the goal of keeping the racial makeup of each school within 15% of the district’s overall racial makeup. To achieve this, the district uses race as one of several “tie-breaking” factors in reassigning students.

The Louisville program covers elementary school as well as higher grades and starts from the premise that students will attend neighborhood schools. But its basic idea is the same as Seattle’s: To ensure that education takes place in a racially diverse setting, the district uses race as one of several criteria for reassigning students.

For example, because the minority student population in the Louisville district is 35%, officials aim to keep black student enrollment in each school between 15% and 50%.

These cases raise a familiar problem. In Brown vs. Board of Education, the Supreme Court outlawed segregated schools but gave no definitive answers to many vexing questions. For example, is it enough for the government simply to stop imposing segregation, or does the Constitution require school districts (or at least formerly segregated districts) to achieve integration? And if the Constitution does not require integrated schools, does it at least permit school officials to create integrated ones because they think racial diversity in the classroom is a social good?


Our wars over affirmative action in school admissions arose from the last of these questions. Disappointed white applicants rebelled at the idea that public schools could award highly competitive slots in colleges and graduate schools to “less qualified” minority students by adopting racial quotas or by using race as a “plus” factor in evaluating applicants.

The critical question in the Seattle and Louisville cases is whether their school assignment programs are sufficiently different from typical affirmative action programs that Kennedy will find their use of race, while problematic, sufficiently benign to satisfy his “almost never” approach. There is some reason to believe that the answer may be yes.

As several prominent federal appellate judges have observed, the reason the Constitution is skeptical of racial classifications is that, historically, they have been used to oppress minorities (the Jim Crow laws), to stigmatize racial groups (laws enforcing racial separation) or to give members of one racial group a leg up over another (typical affirmative action programs).

The Seattle and Louisville pupil-assignment programs spread none of these poisons. They do not oppress, stigmatize or elevate. True, the plans require state officials to think about individuals in racial terms, and they use race as one factor in making an important choice about where students will go to school. Inevitably, some students will be disappointed by the results. But disappointment will visit white and minority students alike because every student runs a risk of reassignment, and it will not stem from school officials placing greater value on membership in one racial group as opposed to another.

The stakes in how Kennedy views these distinctions are high indeed. Hundreds of school districts, confronting largely segregated neighborhoods, use similar plans to ensure that their classrooms reflect their communities’ racial balance and teach by example about a common humanity that can transcend racial or ethnic divides.

In terms of education, how the court decides this week’s cases may well determine whether the resegregation of our public schools -- a creeping process for years -- will take permanent hold because school districts will be effectively barred from stopping it. More broadly still, if the Seattle and Louisville programs do not satisfy Kennedy and a court majority, we will have to wonder, whether the justices say so explicitly or not, whether any use of race to further diversity ever will.