In Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court addressed two student assignment plans that relied upon race to determine which public schools certain children could attend. The Seattle suit challenged high school assignments; the Louisville action, elementary and middle school placements. The Court characterized each plan as voluntary rather than remedial and held that each violated the Fourteenth Amendment’s Equal Protection Clause.
That judgment required Justice Kennedy’s crucial fifth vote, and his concurring opinion explicitly declined to rule out the achievement of diversity as a compelling educational interest or to eliminate the utilization of all race-conscious means. Nonetheless, Parents Involved goes a considerable way toward affirming that our common citizenship and shared humanity transcend differences of ethnicity and race and that a Republic riddled with race-conscious decisionmaking is not what America aspires to be.
Five Justices contributed opinions in this case, and the debate was as impassioned as one would expect a debate on race, schools, and the country’s past and future course to be. In general, these high stakes elicited a high quality of judicial discourse. Yet this battle brought no peace or even truce, and indeed left only the impression that the Court’s own decisions on the use of race in education remain in tension and that the profound differences that persist within the Court and throughout the country on these questions will be argued just as heatedly another day.
I propose to examine the five opinions in three groups: first the Roberts court and plurality opinion and Thomas concurrence; next the Kennedy opinion concurring in part and concurring in the judgment; and then the Stevens and Breyer dissents. As a judge of an inferior court, I approach my task with the deepest respect for the Court and its members and in the hope that the candor necessary for worthwhile commentary is but a mark of appreciation for the conscientious manner in which that fine institution goes about its work.