Here is a very fine explanation of last week’s SCOTUS decision on the use of race in admissions policy by my old pal Roger Clegg. Key graphs concern Justice Kennedy’s opinion:
3. And then, of course, there is the fact that Justice Kennedy did not join all of Chief Justice Roberts’s opinion.
Which brings us to the puzzle: Why didn’t he, and what exactly is it that Justice Kennedy would let a school board do that the other four conservatives would not?
It’s a little messy and complicated, but I think it boils down to this: Justice Kennedy wanted to make clear that, so long as they do not classify individual students by race, it is permissible for school systems to strive to end racial isolation of schools and/or promote their diversity. Thus, for instance, Justice Kennedy would allow school systems to locate individual schools with the idea of promoting racial diversity in them. (This question, by the way, is an admittedly tricky one, at least under the Court’s precedents, and divided the United States from the Seattle plaintiffs.) It’s rather odd and unfortunate that a justice would refuse to join a plurality opinion to make it a majority just because it didn’t include the dicta – that is, a declaration extraneous to the case before the Court – that he would like. But that’s what happened.
It’s not clear that this difference between Kennedy and the plurality will have much real-world effect. Things like school-site selection are, one suspects, hopelessly political anyhow, and having racial makeup in the back of one’s mind with them is in all events much less offensive than classifying individual students by race. Racial essentialism – the idea that your race tells us something fundamental about who you are and that the racial makeup of a school is so intrisically important that it determines who can go to it and who can’t – is now forbidden.
Read the whole thing. And Jonathan Adler’s analysis of the entire term.