You asked if (1) Justice Powell's 1977 opinion in Regents of the University of California v. Bakke was relied on as binding authority in subsequent decisions and (2) Justice Kennedy's recent opinion in Parents Involved in Community Schools v. Seattle School District No. 1 would be considered similarly binding.

The Office of Legislative Research is not authorized to give legal opinions and this should not be construed as one.

SUMMARY

On June 28, 2007, the United States Supreme Court, in Parents Involved in Community Schools v. Seattle School District No. 1 (Parent Involved in Community Schools), limited the use of race in K-12 integration plans on Equal Protection grounds. The Court's opinion was fragmented, with four Justices voting to uphold such programs in general; four Justices voting to invalidate them; and one, Justice Powell voting to invalidate this program, but leaving open the possibility that a more narrowly tailored plan that used race conscious measures could pass constitutional muster.

The Court split similarly in 1977 in University of California v. Bakke, with Justice Powell's opinion being the only one supporting the narrowly tailored use of race in admissions decisions because diversity is a compelling interest. Until the Supreme Court affirmatively adopted Justice Powell's diversity rationale in Grutter v. Bollinger in 2003, lower courts could not agree as to whether it was binding. It is therefore difficult to determine whether Justice Kennedy's opinion would be binding on lower courts. However, as was the case with Bakke, school authorities will likely look towards Justice Kennedy's opinion for guidance in devising school assignment plans, assuming the make-up of the Supreme Court does not change.

BAKKE

The Decision

The Supreme Court first ruled on the issue of race-based admissions in the higher education context in 1978 in Regents of the Univ. of Cal. v. Bakke (438 U. S. 256). In Bakke, the Medical School of the University of California at Davis operated dual admission procedures, which resulted in educationally or economically disadvantaged minorities being given special consideration. The white male plaintiff filed suit alleging that the special admissions program excluded him on the basis of his race in violation of the Equal Protection Clause of the 14th Amendment, the California Constitution, and the Civil Rights Act of 1964. The California Supreme Court ruled only on the Equal Protection grounds, finding that the program was not the least intrusive means to achieve the compelling goals of integrating the profession. It invalidated the program and prohibited the use of race in admissions decisions.

The Supreme Court affirmed the lower court's decision invalidating the program, but the judgment prohibiting the consideration of race was reversed. Six separate opinions were issued by the Supreme Court in Bakke, none garnering a majority of the court. Three of the opinions are considered to be the most important. Four Justices, lead by Justice Brennan, voted to uphold the program on the basis that the government can use race to remedy the effects of past discrimination. Four other Justices voted to strike down the program on statutory grounds. Justice Powell, agreeing in part with both groups of four, voted to strike down the program, but did support the use of race if the program was narrowly tailored to meet a compelling state interest and found that the benefits of diversity was such a compelling state interest. The only obvious holding in Bakke was that a state has “substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. ” This section of Justice Powell's opinion was the only one to garner the five vote majority. This holding does not necessarily offer any support for the judgment that the program was unconstitutional. Additionally, no five Justices offered a unitary rationale as to why or when race could be considered.

Subsequent Cases

The year before Bakke was decided, the Supreme Court, in Marks v. United States, offered guidance on interpreting such a decision, holding that “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest ground'. ” (430 U. S. 1898 (1977)) In his 2002 law review article on the subject, Jason Shoemaker writes that “almost all cases involving race conscious admissions share at least one common theme—the determination of whether Justice Powell's diversity argument is among the binding precedent to be gleaned from Bakke. ” (37 Wake Forest L. Rev. 1113)

In examining Bakke in a more recent similar case, Grutter v. Bollinger, the Court noted that “courts have struggled to discern whether Justice Powell's diversity rationale, set forth in part of the opinion joined by no other justice, is nonetheless binding precedent under Marks. ” (539 U. S. 306 (2003)) For instance, the Ninth Circuit Court of Appeals in Smith v. University of Washington Law School, 233 F. 3d 1188 (9th Cir. 2000), cert. denied, 532 U. S. 1051 (2001), found that the “Brennan four” “would have accepted an even more expansive use of racial factors than that permitted in Justice Powell's opinion. ” Therefore, the court reasoned that, even though they did not sign onto Powell's diversity reasoning, their support could be inferred. In contrast, in reviewing the University of Texas Law School admissions program, the Fifth Circuit in Hopwood v. Texas (Hopwood II), 236 F. 3d 256 (5th Cir. 2001), found that Powell's opinion was not binding because he was the only Justice that specifically found diversity to be a compelling state interest. In a footnote, the court noted that it did not read Marks “as an invitation from the Supreme Court to read its fragmented opinions like tea leaves, attempting to divine what the Justices 'would have' held. Rather, in the absence of subsequent Supreme Court precedent squarely and unequivocally holding that diversity can never be a compelling state interest, we read Bakke as not foreclosing (but certainly not requiring) the acceptance by lower courts of diversity as a compelling state interest. (See also Hopwood v. Texas (Hopwood I), 78 F. 3d 932 (5th Cir. 1996), reaching the same conclusion. ) Meanwhile, in the Eleventh Circuit, the court in Johnson v. Board of Regents of the University of Georgia, 263 F. 3d 1234 (11th Cir. 2001), acknowledged that no five justices explicitly supported the diversity rationale. The court decided, however, not to speculate as to what the Brennan Four would have done, as the Ninth Circuit did in Smith, and decided the case only on narrow tailoring grounds.

The lower courts in Grutter and its companion case, Gratz v. Bollinger, struggled with the issue as well. The Supreme Court in Grutter acknowledged that the test is difficult to apply, as evidenced by the fact that lower courts did not agree on the result. It ultimately elected not to decide whether Justice Powell's opinion was binding, choosing instead to just endorse Justice Powell's reasoning and obviating the need for further analysis on the binding nature of the opinion.

Despite this confusion, the Grutter Court acknowledged that, “since the Court's splintered decision in Bakke, Justice Powell's opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race conscious admissions policies. Public and private universities across the nation have modeled their own admissions programs on Justice Powell's views on permissible race conscious policies. ” This seems logical because, regardless of the technical Marks analysis of whether Powell's entire opinion was binding on lower courts, five justices approved of the use of race in admission decisions. Four would not have required the program to satisfy strict scrutiny while one, Justice Powell, would have required it. Assuming the make-up of the Court remained the same, one might speculate that if a program met Justice Powell's requirements, it would certainly pass constitutional muster with the other four Justices.

PARENTS INVOLVED IN COMMUNITY SCHOOLS

The Seattle and Jefferson County Plans

In 1998, Seattle School District No. 1 adopted a school choice plan to assign students to its 10 public high schools. The plan allowed incoming ninth graders to rank the high schools they would like to attend in order of preference. The district employed several “tiebreakers” to determine who would fill the open slots at an oversubscribed school. The district first looked at whether the student had a sibling at the school. Next, the district looked at the school's racial composition and the student's race. Finally, the district considered the proximity of the school to the student's residence. At issue in the case is the district's use of the tiebreaker related to race. Seattle has never operated legally segregated schools nor has it ever been subject to court-ordered desegregation. It employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments.

Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school system and in 1975 the District Court entered a desegregation decree. Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status. In 2001, Jefferson County adopted the voluntary student assignment plan at issue in this case. The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15% and a maximum black enrollment of 50%. At the elementary school level, based on his or her address, each student was designated a “resides” school to which students within a specific geographic area are assigned; elementary resides schools are “grouped into clusters in order to facilitate integration. ”

The district assigns students to nonmagnet schools in one of two ways: Parents of kindergartners, first-graders, and students new to the district may submit an application indicating a first and second choice among the schools within their cluster; students who do not submit such an application are assigned within the cluster by the district. “Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the District's current student assignment plan. ” If a school has reached the “extremes of the racial guidelines,” a student whose race would contribute to the school's racial imbalance will not be assigned there. After assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be requested for any number of reasons, and may be denied because of lack of available space or on the basis of the racial guidelines.

The Decision

Petitioners, an organization of Seattle parents and the mother of a Jefferson County student whose children were or could have been assigned under the plans, filed these suits contending that assigning children to different public schools based solely on their race violates the Equal Protection Clause of the Fourteenth Amendment. In the Seattle case, the District Court granted the school district summary judgment, finding that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit reversed the decision on state law grounds, and again later on federal constitutional grounds, but then overruled itself and affirmed. In the Jefferson County case, the District Court found that the school district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was narrowly tailored to serve that interest. The Sixth Circuit affirmed.

The Supreme Court reversed the Circuit Court decisions. Bakke and Parent Involved in Community Schools share some similarities. Five separate opinions were filed in Parent Involved in Community Schools. The Court was split in a similar 4-1-4 pattern in the ruling. Four Justices, lead by Chief Justice Roberts, voted to strike down the plans because (1) the school districts were not remedying de jure segregation or operating subject to a court order- the only two recognized compelling interests to date- and the plans were not narrowly tailored and (2) the plans were aimed at racial balancing which is not a compelling interest. In Justice Breyer's minority opinion, four Justices voted to uphold the plans because they were sufficiently narrowly tailored to meet a compelling state interest of diversifying education. The minority found the use of race in school assignment is not limited to court ordered desegregation and the remediation of de jure segregation. The minority differentiated between the use of race for inclusion and the use of race for exclusion.

Like Justice Powell in Bakke, Justice Kennedy served as the swing vote. He voted to strike down the programs, finding that diversity is a compelling goal, but agreeing with the plurality that the plans were not narrowly tailored. He found that school authorities are free to devise race-conscious measures to address the problem of segregation in a general way and suggested a number of acceptable race conscious measures that do not lead to individual racial classification. He opines that these measures would probably not need to pass the rigorous strict scrutiny test. He also suggests that schools may employ a “more nuanced, individual evaluation,” if necessary, that might include a race component. As to these race conscious measures, the plurality expressly chose to “express no opinion on their validity—not even in dicta. ” Justice Kennedy specifically noted that he would not join the minority because its opinion rested on “a misuse and mistaken interpretation of precedents. ”

CONCLUSION

As with Justice Powell's diversity rationale in Bakke, the question becomes whether or not Justice Kennedy's opinion as to race-conscious measures constitutes binding precedent for lower courts. Given the split of authority in the lower courts and the Supreme Court's acknowledgement of the difficulty associated with applying the Marks test, it is unclear how it would be applied to Parent Involved in Community Schools. Using a Hopwood type of analysis, only Justice Kennedy expressly supported these measures and you cannot assume the minority would agree with him. A lower court would not be foreclosed from allowing such race conscious measures, but would not be required to do so, because no five Justices made such a ruling. Alternatively, if the Smith reasoning is applied, one could infer the support of the minority because it would have accepted an even more expansive use of racial factors than that permitted by Kennedy. However, Marks requires a determination of the narrowest grounds that support the judgment. It is not clear that Justice Kennedy's opinions on race-conscious measures are necessary to the judgment. It could be argued that the narrowest ground to support the judgment of the Court that the plans were unconstitutional is that they were not narrowly tailored.

Regardless, as with Bakke, Justice Kennedy's opinion will likely be used to provide guidance as school assignment programs are reviewed. Again, assuming there is no change in the make-up of the Court, one could speculate that a district seeking to employ a school-assignment plan that considers race need only satisfy Justice Kennedy's more stringent rules in order to garner the support of a majority of the Court.

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