A Stitch in Haste

Earlier I blogged --

If race-based preferences are unconstitutional in the context of a school district where every student is guaranteed a seat somewhere in the district, just not their first choice (i.e., a student may be denied, based in part on race, admission to "a school," but not to "the schools"), then how can such preferences be constitutional if they, based in part on race, deny access altogether (i.e., when "a school" and "the schools" are the same thing)? How can the lesser denial be unconstitutional but the greater denial not be? How can Grutter v. Bollinger, 539 US 306 (2003) which said as much in the context of raced-based preferences in law school admissions, possibly still be good law?

Apparently this paradox is also behind the schism between the four-Justice plurality and Justice Kennedy's concurrence --

Roberts, Scalia, Thomas, Alito (and me): "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" (i.e., "Never, no way, no how...").

Kennedy: "The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race" (i.e., "Sometimes, just not here...").

More thoughts on this observation at SCOTUSblog, Dorf on Law, Balkinization.

I hope Kennedy is enjoying his incessant game of "I will agree with the plurality just enough for my concurrence to be controlling." See my previous post.

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An (adapted) comment that I left at another blog:

Kennedy's thesis would be stronger if one noted that lower-income inner city racial enclaves were the direct result of past government action (e.g., the Housing Act of 1949) and not from strictly private discrimination.

Without that, there is no basis to dismiss as "offensive and blinkered" the patently obvious conclusion that a school -- in a black neighborhood full of black students from that black neighborhood -- is, without more, surely not "racist."

This ties into my previous point that there is certainly a "compelling interest" in fostering local schooling that at least partially offsets the (supposed) "compelling interest" of achieving racial diversity across a school district.

Note also that one of the school districts -- Seattle -- had never been deemed "segregated" by the federal government. So even this sort of tether to a segregated past would be inapplicable. (The other school district -- Louisville, Kentucky -- has been removed from the federal government's list of schools in need of racial remediation.)

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Note that race-based admission jurisprudence, from Bakke to Grutter, is on my list of the worst Supreme Court cases. Kennedy's concurrence can be appended to that entry.