Judicial Notebook

By Richard L. Wiener, PhD, Law and Psychology ProgramUniversity of Nebraska-Lincoln

According to Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas and Samuel Anthony Alito Jr., school districts that have never discriminated based on race-or that have discriminated on that basis but no longer do and have removed the effects of that discrimination-may not use race-conscious remedies to achieve integration goals. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," said Roberts, in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S .Ct. 2738, 2768 (2007). The plurality in this important case, which likely points the Supreme Court's direction in considering school-based affirmative-action plans, did not endorse diversity as a compelling state interest, the same interest that a majority endorsed four years ago in Grutter v. Bollinger, 123 S.Ct. 2325, (2003).

Constitutionally impermissible

A majority (the plurality and Justice Anthony M. Kennedy) in Parents Involved concluded that the Seattle and Jefferson County (Louisville) school districts could not consider racial composition as a factor in admissions to elementary or secondary schools as a way to eliminate segregation. The majority reasoned that the school district's plans used race as a mechanical, nonindividualized factor that was decisive in determining whether some students could or could not attend their schools of choice. The majority found that such an approach was a constitutionally impermissible departure from the University of Michigan Law school plan upheld in Grutter v. Bollinger, which treated race as part of a broader assessment of student diversity at that institution. The majority in Parents Involved also drew a distinction between diversity in primary education as compared with higher education where there is a need to foster freedom of speech and thought at the university level.

Furthermore, the court found the Seattle and Jefferson County plans were not narrowly tailored to meet any educational or social benefits that flowed from racial diversity, but were instead simply efforts to reach racial balance in the Seattle and Jefferson County school districts. Furthermore, according to Justice Kennedy, the balance that the school districts sought was achievable in other ways, such as strategically selecting new school sites, drawing attendance zones that considered the demographics of neighborhoods, providing special programs, recruiting students and faculty, and measuring outcomes by race. Finally, the small change in school populations that the districts achieved with their affirmative-action plans was ineffective in bringing about the stated diversity goals.

The majority stopped short of outlawing racial consciousness as a tool for use in affirmative action plans, as Justice Kennedy was unwilling to go that far. Instead, he maintained that a school district might have a compelling interest in avoiding racial isolation and promoting diversity among its student body. Justice Kennedy, who presumably the four dissenters would join in future cases, tracked the logic in Grutter, concluding, "Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered." The government may not, as it did in these plans, "classify every student on the basis of race and assign each of them to schools based on that classification."

Benefits of integrationIn considering whether diversity was a compelling interest in elementary and secondary school, the plurality considered the social science research on the benefits of integrated instruction at the primary and secondary levels (see especially Justice Thomas's treatment of the research literature). The plurality found those data inconsistent and unconvincing. However, Justice Thomas raised an issue that could be a fertile ground for future empirical work in this area. The Court challenged the use of diversity as a compelling state interest in primary and secondary schools when Thomas stated, "education in the elementary and secondary environment generally does not involve the free interchange of ideas thought to be an integral part of higher education." The courts are likely to take notice of data that test the importance of diversity as a moderator and mediator of the free expression of ideas at the primary and secondary levels of education, especially if they show the longer-term influence of diversity on free expression in higher education and even post-graduation. Psychologists and social scientists who collect and report such data can play an important role in the continuing debate on the value of affirmative action in education. The importance of that work cannot be understated.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).