Jack Balkin joins the growing crowd of voices who, in trying to make sense of Justice Kennedy's pivotal concurrence, have labeled it an extension of Grutter in elementary and secondary schools. He also notes that Kennedy is in some ways an unlikely proponent of Grutter:
"Grutter becomes the model, if not in the plurality opinion, then in Justice Kennedy's...And that is quite interesting, precisely because Kennedy himself did not join the majority opinion in Grutter. In one stroke he has signalled that he is more or less on board with Grutter. That is good news for people who were worried that all affirmative action policies were now in danger following Justice O'Connor's retirement. Kennedy may not uphold the next affirmative action policy that comes before the Court. But his position on affirmative action is not the same as the plurality's, much less that of Justice Thomas."
Thursday, June 28, 2007
More "Grutter-ization" of Schools
School Integration and Grutter
While advocates and analysts on both sides of the Seattle and Louisville cases have been debating what they mean for the legacy of Brown, Tom Goldstein at SCOTUSblog examines how today's rulings follow in the steps of a more recent education case, Grutter v. Bollinger:
"One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement."
Goldstein goes on to discuss what the decision leaves open:
"Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question."
In a later post, Goldstein expands on his conclusions:
"So, progressives may be relatively sanguine about the decision. (And conservatives may be disappointed.) For liberals, it could have been – indeed, after argument, it was widely expected to be – much worse." On the other hand, he notes, "Justice Kennedy’s proposed alternative that schools consider race as one among many factors in admissions (a la Grutter) strikes me as impractical. K-12 school assignment is not comparable to the admissions process for college and graduate programs. For resource reasons at the very least, school districts must paint with a much broader brush."