The Supreme Court, in its very last decision of the term, limited the ability of public school districts to use race in determining which schools students may attend. The Court reviewed student assignment plans from Seattle and Louisville. The 5-to-4 decision in the consolidated case generated no fewer than five opinions totaling 185 pages.
To say the justices were sharply divided in Parents Involved in Community Schools v. Seattle School District No.1, et al. would be an understatement. Justice Stephen Breyer spoke for himself and justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg in a 77-page dissent disputing key points in the plurality opinion made up of those parts of Chief Justice John Roberts's majority opinion that weren't joined by Justice Anthony Kennedy. The dissent also took issue with the majority opinion, made up of those parts of Roberts's opinion that were joined by Kennedy, as well as Justice Clarence Thomas's concurrence. Roberts, Kennedy, and Thomas each responded, leaving no doubt about their differences with Breyer.
The big issue dividing the Court was the question of which justices were really being, as Roberts put it, "faithful to the heritage of Brown." Brown, of course, is Brown v. Board of Education, the landmark 1954 case in which the Court struck down public school segregation. According to a count by the New York Times, the five opinions in Parents Involved in Community Schools referred to Brown no fewer than 90 times.
The Seattle pupil assignment plan allowed ninth graders to choose from among any
of the district's high schools. When too many chose the same school, tiebreakers were used. The second tiebreaker was race. The school district classified every student as either "white" or "nonwhite." If a student's race served, in the school district's words, "to bring the school into balance"--racial balance being defined as the system's overall white/nonwhite composition--then that student got in over someone whose race didn't further this end.
In Louisville, the district classified elementary school students as "black" or "other" and used race to decide transfers. Here, too, the district sought to maintain a certain racial balance in each school, and if your race contributed to an "imbalance," then you couldn't enroll there.
Considering the Court's equal protection precedents, it was hard to see how either use of race could have survived judicial review. The Court has made clear that government programs that classify individuals on the basis of race, and burden or benefit them accordingly, are subject to "strict scrutiny." This means such programs must be "narrowly tailored" to achieve a "compelling" state interest. It doesn't matter what the motive behind a program is. Whether the motive is "benign," as supporters characterized the Seattle and Louisville programs, or "invidious"--as was the case in, for example, the original school desegregation cases--under the Fourteenth Amendment's equal protection clause, every racial classification is subject to strict scrutiny.
In his majority opinion, Roberts pointed out that the case law recognizes two state interests as "compelling." One is remedying the effects of past intentional discrimination. The other is, within the context of higher education, producing student body diversity encompassing not just race but also other factors. The Court affirmed the diversity interest in the 2003 Grutter case, which upheld race preferences in admissions.
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