Majority of Court Finds School Diversity a Compelling Interest

Along with Stevens, Breyer, Souter, and Ginsburg, Kennedy, in a separate opinion, finds that there is a compelling interest in diversity and integration in America's schools.

Despite his concurrence in the judgment of the plurality opinion that the particular school plans at issue did not have enough justification for their consideration of the race of individual students, Justice Kennedy wrote in favor of the ability, and, indeed, importance of school districts to pursue integrated schools. In his opinion, Kennedy stated that the racial diversity of particular schools could be considered in this pursuit:

"The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown's objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken...

In administering public schools, it is permissible to consider the schools' racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306. School authorities concerned that their student bodies' racial compositions interfere with offering an equal educational opportunity to all are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion based solely on a systematic, individual typing by race. Such measures may include strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race." (emphasis added)