Justice Breyer's dissent argues that:
These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U. S. 483 (1954), long ago promised, efforts that this Court has repeatedly required, permitted, and encouraged
local authorities to undertake. This Court has recognized that the public interests at stake in such cases are compelling. We have approved of narrowly tailored plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.
The plurality pays inadequate attention to this law, to past opinions, rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.
. . . [I]n respect to race-conscious desegregation measures that the Constitution
permitted, but did not require (measures similar tothose at issue here), this Court unanimously stated:
School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society
each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971) As a result, different districts, some acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply with federal administrative orders, some acting purely voluntarily, some acting after federal courts had dissolved earlier orders, adopted, modified, and experimented with hosts of different kinds of plans, including race-conscious plans, all with a similar objective: greater racial integration of public schools. See F. Welch & A. Light, New Evidence on School Desegregation (1987) (hereinafter Welch) (prepared for the Commission on Civil Rights) (reviewing a sample of 125 school districts, constituting 20% of national public school enrollment, that had experimented with nearly 300 different plans over 18 years). The techniques that different districts have employed range from voluntary transfer programs to mandatory reassignment. Id., at 21.
. . . The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories.
I describe those histories at length in order to highlight three important features of these cases. First, the school districts plans serve compelling interests and are narrowly tailored on any reasonable definition of those terms. Second, the distinction between de jure segregation(caused by school systems) and de facto segregation(caused, e.g., by housing patterns or generalized societal discrimination) is meaningless in the present context, thereby dooming the plurality's endeavor to find support for its views in that distinction. Third, real-world efforts to substitute racially diverse for racially segregated schools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are conscious of the race of individuals.
. . . A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. . . . [T]he Court set forth in Swann a basic principle of constitutional law, a principle of law that has found wide acceptance in the legal culture. Dickerson v. United States, 530 U. S. 428, 443 (2000) (internal quotation marks omitted); Mitchell v. United States, 526 U. S. 314, 330 (1999); id., at 331, 332 (SCALIA, J., dissenting) (citing wide acceptance in the legal culture as adequate reason not to overrule prior cases).
Thus, in North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 45 (1971), this Court, citing Swann, restated the point. [S]chool authorities, the Court said, have wide discretion in formulating school policy, and . . . as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements. Then-Justice Rehnquist echoed this view in Bustop, Inc. v. Los
Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978) (opinion inchambers), making clear that he too believed that Swann's statement reflected settled law: While I have the gravest doubts that [a state supreme court] was required by the
United States Constitution to take the [desegregation]action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take
such action. . . .
The law of the case is, ostensibly, Justice Kennedy's opinion:
In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to 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 (2003); id., at 387.388 (KENNEDY, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.
School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of thedemographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. See Bush v. Vera, 517 U. S. 952, 958 (1996) (plurality opinion) (Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. . . . Electoral district lines are facially race neutral, so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of classifications based explicitly on race.(quoting Adarand, 515 U. S., at 213)).
Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different
races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.
What Kennedy is saying is not at all easy to discern or to make logic of frankly.
Suffice it to say, my quick interpretation is Kennedy is for allowing for race conscious policies except those that might work. A more thorough review of all of this is necessary and I will try to have something more in depth tomorrow.
