SCOTUS Fails The Test

Lawyer Andrew Cohen analyzes legal affairs for CBS News and
The Supreme Court offered no happy endings Thursday when it closed out its October 2006 with a whimper disguised as a bang. Well, not so much a whimper as a whispered promise of a whole new generation of lawsuits brought by parents of students who feel they've been deprived of some right to attend some school for some reason having to do with race.

The nation's legal and political communities—not to mention millions of affected parents—watched and waited all term long for some sort of clarity and finality in the area of how far public school officials can go in using racial "components" to determine student bodies. On the last day of its term, the Court instead gave us all more ambiguous standards, more mealy-mouthed phrases, and more uncertainty. It is now significantly more difficult for school administrators to justify policies that include race as a factor in determining admission; but it is not impossible for them to do so. And everyone ought to try to work together toward some sort of diversity in public schools. Got it?

There was the most conservative opinion, which garnered only four votes, the slightly less conservative opinion, which held the field because it included Justice Anthony's Kennedy's concurrence, and the least conservative opinions, offered by the tamed lions of the Court's left. Taken together they portray not just a bitterly divided group of nine smart judges but also a new legal doctrine that is just as muddled as the one it purports to replace.

Here is the key language from Justice Kennedy's key concurrence. He wrote: "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs should also be considered.

"Those entrusted with directing our public schools," Justice Kennedy continued, "can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications." Unfortunately, the author, and for that matter the rest of his colleagues on the Court still apparently don't understand that the "creativity" of "experts, parents, administrators and other concerned citizens" have gotten some public school enrollment policies into the precisely mess they are in today. And thanks to a lame result here the same chaos they'll all be struggling with tomorrow as well.