Academic

Garfield on Race Preference Policies

By Lawrence Solum

Leslie Yalof Garfield (Pace Law School) has posted The Glass Half Full: Envisioning the Future of Race Preference Policies (NYU Annual Survey of American Law, Vol. 63, No. 385, 2007) on SSRN. Here is the abstract:

Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when assigning students to particular schools. Justice Kennedy's concurrence in the 4-1-4 decision, like that of the dissent, acknowledged that a compelling governmental interest in achieving diversity justifies a school board's use of race conscious school assignment plans. His opinion could swing the Court to a position that is favorable to those who believe race-preference policies are paramount to achieving a society free from segregation.

The Supreme Court's fractured opinion in Parents Involved is reminiscent of the first time the Court considered an Equal Protection challenge to an academic institution employing a race-preference program. In this recent decision a divided court ruled that the Louisville and Seattle School districts could not use race as a factor in determining which school a particular student would attend. The Court split itself in a manner similar to the Court in University of California v. Bakke, where a fractured Court ruled that the University of California Medical School could not set aside a certain number of seats for minority applicants whose objective admissions criteria were not equal to that of their non-minority peers. Commentators warned that the Court's decision potentially limited educational opportunities for minorities and also vitiated the important strides of the civil rights movement.

The reality of the Bakke decision, however, unveiled itself quite differently than anyone reading the Court's opinions might have predicted. Five justices agreed that the University of California Medical School's program violated the Equal Protection Clause and four justices asserted that race could never be a factor in the admissions process. Justice Powell wrote a majority opinion in which 4 justices joined in his conclusion, but no single justice joined in his reasoning. His opinion acknowledged that in certain instances, states or their agencies could use race as a factor in ensuring diversity and that while the University of California plan violated the Constitution, not all plans that use race would meet with the same fatal result. Justice Powell's "majority of one" has had historic consequences on the race-preference legal debate. This opinion served as the leading precedent in defining the limits of constitutionally permissible government regulations aimed at remedying present effects of past discrimination and aimed at achieving racial balance. If the Bakke case is to serve as precedent in the truest sense of the word, then following Parents Involved the future of affirmative action is not necessary as gloomy as Justices, Lawyers and Commentators predict.

I argue that Justice Kennedy's concurrence supports an expansion of the permissible use of race-preference policies. My review of the Court's reliance on concurring opinions supports my conclusion that in the right instances, a future court can adopt a single justice's voice and use it to take the court in a very different direction. Thus, despite Justice Breyer's dire prediction history suggests that there is some room for optimism that governmental entities, in the proper instances, will remain free to employ race-preference programs.

Full post as published by Legal Theory Blog on July 03, 2008 (boomark / email).