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Article Excerpt
Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K-12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy's concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy's past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny. Indeed, in Parents Involved, Justice Kennedy reveals his three principal concerns: classification of individuals by race, courts interfering with school districts in their daily functions, and the inappropriate use of strict scrutiny when school districts do not intend to affect students because of their race. This Note contends that all three of those concerns militate in favor of using strict scrutiny for rezoning and site selection plans. Such plans most likely will result in the classification of students by race, strict scrutiny of such plans will not prevent school districts from performing their daily functions, and courts may still implement a lower level of scrutiny when school districts do not intend to act based on race. School districts should, therefore, proceed with caution and ensure that any racially based rezoning or site selection plans they use are narrowly tailored to achieve the compelling interest of diversity.
TABLE OF CONTENTS INTRODUCTION I. PARENTS INVOLVED RAISED BUT DID NOT RESOLVE A TIMELY CONSTITUTIONAL QUESTION A. Parents Involved Dealt with Societal Segregation, Not Government-Sponsored Segregation B. The Justices Were Ambiguous About the Effects of the Holding in Parents Involved II. UNDER JUSTICE KENNEDY'S REASONING, STRICT SCRUTINY IS THE APPLICABLE STANDARD OF REVIEW TO ASSESS THE CONSTITUTIONALITY OF SITING OR REZONING PLANS A. It Is Not Clear Whether a Majority of the Court Would Demand Strict Scrutiny B. Justice Kennedy's Reasoning--Strict Scrutiny Is More Likely than He Thinks 1. Justice Kennedy's Language Suggests Three Areas of Concern 2. Rezoning and Site Selection Raise the Same Concerns as Classifying Individuals by Race 3. Applying Strict Scrutiny to Race-Motivated Plans Will Not Prevent State Officials from Performing Their Necessary Duties 4. Justice Kennedy Is Not Calling for a More Lenient Standard CONCLUSION
INTRODUCTION
Five months before the Supreme Court issued its decision in Parents Involved, (1) Professor Goodwin Liu predicted that the case would "write perhaps the final chapter of the constitutional and cultural legacy of Brown in public education." (2) Unfortunately for lower court judges and school districts across the nation, Professor Liu's hopeful forecast did not come to fruition. A five-to-four majority held that school assignment plans designed to achieve racial diversity in Seattle and Kentucky violated the Equal Protection Clause because they classified students by race. Justice Kennedy was the fifth vote in the majority, but he agreed only with the conclusion, not the reasoning. (3) He offered the narrowest, and therefore the controlling, opinion. (4) That opinion raised, but did not answer, the following important and timely constitutional question: whether the Constitution permits K-12 public school districts not under existing desegregation orders, in an attempt to achieve racial diversity, to site new schools on the borders of racially different neighborhoods, or, alternatively, to change school attendance zones. Some have argued that Justice Kennedy answered the question in the affirmative, and they encourage schools to embrace site selection and rezoning as a constitutional means for achieving diversity. (5) A deeper analysis of Justice Kennedy's reasoning, however, reveals that school districts who engage in such practices will face strict scrutiny by the courts and will pass that scrutiny only in the narrowest of circumstances.
Because many school districts across the country use programs similar to those struck down in Parents Involved, this open question of constitutional law is both timely and important. (6) Such school districts must revise their plans in light of the Court's holding and analysis. (7) Indeed, just days after the Court announced its decision, a lawsuit in Boston challenged a "public school assignment plan similar to those the Justices struck down" in Parents Involved. (8) School districts are scrambling to create plans "that can pass muster with the court." (9)
Further, a number of school officials, scholars, and even opponents of the use of race in any form are interpreting Justice Kennedy's opinion as an answer to the constitutional question that gives full-fledged approval of school site selection and redrawing of attendance zones in order to achieve racial integration. (10) Comments by Roger Clegg of the Center for Equal Opportunity are illustrative: "Justice Kennedy would allow school systems to locate individual schools with the idea of promoting racial diversity in them." (11) Indeed, some school districts have already put forth proposals to change attendance zones to achieve, among other things, "demographically" balanced schools. (12)
In light of this interpretation of and reaction to Justice Kennedy's opinion, this Note argues that schools should proceed with caution and that Justice Kennedy will still require schools to face strict scrutiny if they use racially based site selection or rezoning to achieve diversity. The constitutional question is complex, and Justice Kennedy's statements were hardly definitive. They most likely did not embrace all uses of site selection and attendance-zone manipulation to achieve racial diversity. Indeed, to assume otherwise is to misread Justice Kennedy's opinion and to impute to his comments far more significance than he may have intended. Justice Kennedy certainly raised possibilities for school districts to consider, but the likely resolution of the constitutional question is that those districts will still need to ensure that their site selection and rezoning plans are narrowly tailored to achieve racial diversity.
Schools should understand that Justice Kennedy does not endorse wholeheartedly all forms of school site selection and attendance-zone manipulation; rather, his reasoning and language call for the application of strict scrutiny, which means courts will likely find that many rezoning and siting plans do violate the Constitution. (13) Accordingly, Part I of this Note argues in more detail that the Justices' opinions in Parents Involved left open a constitutional question for which school districts will need an answer. Part II then contends that Justice Kennedy's concurrence requires lower courts to apply strict scrutiny when evaluating school site selections or changing attendance zones as integrative methods, and that those who argue otherwise may have misinterpreted Justice Kennedy's language.
I. PARENTS INVOLVED RAISED BUT DID NOT RESOLVE A TIMELY CONSTITUTIONAL QUESTION
This Part argues that Parents Involved left open an important issue of constitutional law. Section I.A details the basic background of desegregation law and argues that societal shifts created a complex environment in which the Court decided Parents Involved. Section I.B argues that ambiguity in the Justices' opinions regarding the effects of the holding in Parents Involved raised but failed to answer the question of whether state officials may under the Constitution use rezoning plans or strategic site selection to achieve diversity in schools.
A. Parents Involved Dealt with Societal Segregation, Not Government-Sponsored Segregation
As society has shifted away from the intentional, state-sponsored segregation of the past, the law has developed and created a background for Parents Involved far different from what the Court faced in earlier decisions. This is most evident in the case law related to race in schools. At the time of Brown v. Board of Education, (14) many states operated segregated school systems as a matter of state policy. (15) Brown's order to schools was fairly simple: desegregate. In the decades since Brown, however, many school systems shifted their focus from remedying state-sponsored, or de jure, segregation to remedying societal, or de facto, segregation. (16) The law adjusted accordingly.
The shift happened as a result of two developments: first, states that never participated in de jure segregation decided to combat de facto segregation; (17) second, states that did practice de jure segregation kept their integrative plans in place even after achieving what the courts call "unitary status." (18) This label means that school districts under desegregation orders by federal courts have "implemented a desegregation plan in good faith and that the vestiges of discrimination have been eliminated to the extent practicable." (19) In other words, federal courts do not compel unitary school districts to continue their integrative plans. Many districts, however, choose to engage in integrative policies because de facto segregation still exists among their students. (20)
While courts uniformly support the amelioration of de jure segregation, in the years before the Parents Involved decision, they had often looked at programs to eliminate de facto segregation with some skepticism. (21) This was often because school admissions programs designed to combat de facto segregation prompted charges of racism and unequal protection under the law. (22) Thus the issue of whether schools should be engaged in the process of solving societal segregation has divided politicians, voters, and judges. This is the background against which the Court decided Parents Involved.
B. The Justices Were Ambiguous About the Effects of the Holding in Parents Involved
Ambiguous statements in Justice Kennedy's concurrence in Parents Involved failed to resolve the constitutional question conclusively, leaving government officials and lower courts uncertain as they devise and scrutinize plans to achieve diversity in public schools. His language suggests a departure from his previous view that strict scrutiny should be applied in all cases where racial classifications are used. (23) His Parents Involved opinion reflects an expansion of another strain of his reasoning in previous cases, one concerned with the problem of stigma. (24) Justice Kennedy is skeptical of state programs that affect not only how students are perceived but how they perceive themselves.
Parents Involved dealt with two very similar student assignment plans under which students who wished to enroll in particular schools were denied admission solely because of their race. (25) The first, in Kentucky, operated at the elementary school level. (26) The plan required "all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent" in a school district that was about 34 percent black and 66 percent white. (27) Students indicated which schools...
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