You’ve probably heard—the Times gave it the four-alarm treatment on the front-page today—that the Supreme Court struck down school desegregation plans in Seattle and Louisville yesterday. Since the ruling came down yesterday morning, I’ve been putting in calls to School Chancellor Joel Klein’s press office, but they’ve yet to get back to me. Which is probably understandable, given the complexity and political sensitivity of the issues involved. But I’ve actually been following these cases for a while now, since the case was argued in December, and so I’m going to do a little instant analysis of the likely effects of the ruling here in New York.
But first, an observation: This 185-pager reads more like a showdown between two boxers at a weigh-in than it does a Supreme Court decision. Justice John Paul Stevens is the one who truly breaks from the court’s traditional modes of understatement, failing to say that he "respectfully" dissents—as justices almost always do in dissents—and accusing Chief Justice John Roberts of "rewriting" history. Roberts, although perpetually smiling and boyish in person, cuts down Justice Breyer almost as viciously. But of course, everyone is kind to Justice Kennedy, now the court’s crucial “fifth vote.”
The issue here is whether the Equal Protection Clause should keep public high schools from remedying de facto segregation. New York City is one of those districts because any separation between white and black students here is not imposed by any act of state, but rather created by outside factors, such as naturally segregated housing patterns, economic makeup of the various districts, dinner party horror stories, and New York magazine.
So how might this decision—or, more precisely, Justice Kennedy's view of the law—impact our public schools? Here’s my seat-of-the-pants rundown of the implications.
1. Diversity: "A Compelling Educational Goal"
The single-most important admission by Justice Kennedy is that "diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue." It's the use of that word "compelling"—if he had written "important" or "rational," we'd be singing to a different tune today—that could have huge implications for inventive New York school administrators and mayors over the coming years.
In Seattle, as in most cities, there are some poor, mostly minority public schools and there are other richer, whiter schools. Administrators there tried—and as of yesterday, failed—to institute a plan that would allow prospective high schoolers to choose their top choice school, regardless of where it was located. The catch is that the best schools were inevitably oversubscribed, so tiebreakers were used. The first was whether the student had a sibling in their school. The second was race.
My reading of the decision suggests that it actually gives the green light to administrators in the city to craft a "narrowly tailored" plan (meaning it considers students individually, doesn't unduly harm one race, has an end in sight, etc., etc.) that aims to better achieve "genuine diversity" (it looks at factors other than whether a student is white or not and probably other factors than race).
But how?
2. Kennedy: "The problem before us defies so easy a solution."
That's the swipe the switch-hitting justice takes at Justice Roberts' all-too-clever postulation that the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Kennedy then goes on to offer his solution: "School districts can seek to reach Brown's objective of equal educational opportunity…[and] are free to devise race-conscious measures to address the problem in a general way." That's the key.
So let's go to the drawing board. What can New York administrators do, without fear of a valid lawsuit, to help better racially integrate students or simply to provide everyone with a more equal opportunity to learn regardless of housing patterns?
This is essentially what the Seattle District wanted anyway — they didn't go through all this trouble to help the small percentage of rich black students in the nicer area of Seattle — and this is a policy that perhaps all nine justices would even support. Justice Kennedy would go a step further, granting more flexibility to administrators. He argues it might be acceptable for them to consider race, too. But Mayor Bloomberg, be forewarned: You'll want to make strides to look at the whole picture and not just skin color in order to avoid subjecting a future New York equal opportunity plan to the Seattle Plan's fate. You’ll also want an sunset provision, a guarantee by experts that the policies would not unduly harm a certain demographic, and proof that you strongly considered alternative plans.
B. Redraw attendance zones. Justice Kennedy explicitly endorses officials who would like to redraw school districts with race in mind — or, as he puts it more subtly, "recognition of the demographics of neighborhoods." Again, it seems simple, but the plurality per Chief Justice Roberts suggests it would prefer otherwise. "Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decision-maker considers the impact a given approach might have on students of different races," Kennedy writes.
C. Fourth Grade Pen Pal Day. My school district in New Jersey might have been more than 90% white, but this is what we did at least to bridge divides. Yes, factoring race into the equation, students could be assigned a pen pal from across their boroughs. They'd correspond with them for a full year — and then meet them finally on a spring Pen Pal Day full of ice cream, games and awkward looks.
In short, be inventive and put the emphasis on other factors intertwined with race. But not race…too much.
3. Our de facto leader: Anthony Kennedy.
In the second-to-last page of his opinion (page 102 of the overall decision), Justice Kennedy includes a call to action:
"Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face [genuine diversity]."
That profoundly insightful excerpt is proof that the court — or at least one middle-road justice on it – is trying to update the law for the 21st Century. Justice Kennedy here is calling for community forums to solve the issues with new solutions that consider race but do not give it more weight than it deserves at the cost of other factors ranging from heritage to economic background to ideological perspective. It is advice directly aimed at a city like New York.
