Last month, I predicted that the current Supreme Court would strike down the school assignment plans in Seattle and Louisville as violative of the Fourteenth Amendment's Equal Protection guarantee. The results are now in and they can only be described as mixed. I was right and I was wrong. The Court, with Justice Anthony Kennedy's pivotal vote, did strike down both school plans. And the Court was significantly fragmented. However, at least for now, Grutter is safe in the higher education context.

Fearing the worst, I hoped for a highly fractured opinion that would be of slight precedential value. There is something in the opinions for advocates on all sides. As is often the case with such a divided Court, it is difficult to identify winners and losers. It is also a tortuous task for citizens to discern clear meaning from opinions that run nearly two hundred pages. It seems likely that the Court's recent school desegregation cases will set off a new round of litigation throughout the country and it will be several more years and circuit splits before the Court will clarify when race consciousness is constitutionally permissible.

What we do know now for certain is that the Court remains sharply divided regarding when, if ever, racial classifications are permissible. Four members of the Court appear opposed to virtually all racial classifications, absent a specific remedial justification grounded on specific past discrimination by the government. For Roberts, Scalia, Alito, and Thomas, "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." This axiom is seductive and has had currency with academics like William Van Alstyne for nearly three decades. They will allow racial classifications to remedy the effects of past discrimination, but they see almost no link between current segregation and past segregative conditions. It is unclear what they think about diversity in higher education, but they distinguished Grutter's rationale and held it inapplicable to these school assignment plans.

Four other members of the Court would have upheld the local school policies on the ground that efforts to achieve racial integration are constitutionally distinguishable from efforts to continue racial segregation. They continue to agree with former Associate Justice Harry Blackmun that to get beyond race discrimination we must take account of race. For Breyer, Stevens, Ginsburg, and Souter, "it is a cruel distortion of history to compare ... Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). For the dissenters, government can dismantle educational caste without violating the equal protection guarantee.

And in the middle of these divergent camps on the meaning of constitutional equality sits Justice Kennedy, affirming that these challenged school assignment plans were not narrowly tailored and, thus were unconstitutional racial classifications, but insisting that school officials may "adopt general policies to encourage a diverse student body, one aspect of which is its racial composition." Justice Kennedy wrote, "If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of the students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in a different fashion solely on the basis of a systematic, individual typing by race." Accordingly, Kennedy concluded school boards had various permissible race conscious means of bringing together students of diverse backgrounds and races, including "strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. Here, Kennedy borrowed from recent redistricting cases to conclude that consciousness of racial demographics in either context does not necessarily lead to the conclusion that strict scrutiny should apply to general policies. What is constitutionally impermissible is "assigning to each student a personal designation according to a crude system of individual racial classifications...."

Like Lewis Powell 30 years earlier in Bakke, Kennedy now stands alone. He rejects the view that all government race consciousness is constitutionally impermissible and he rejects the view that government can use racial classifications in school assignments where the goal is educational integration. The question now is whether Kennedy’s opinion will gain the stature that Powell's did, and then, whether it will suffer the same jurisprudential fate.

Nearly 55 years since Brown v. Board of Education was first argued and almost 30 years since U.C. Regents v. Bakke, the promise of equal educational opportunity remains one of the most elusive guarantees and most vexing issues in American life. None of the opinions say enough about educational equality and educationally effective schools for all children. Because of its colorblindness, the majority fails to see the relationship between racial discrimination in almost every aspect of American life for most of our history and current racial segregation in housing and schools. For all of his concerns about the messages implicit in racial classifications, Chief Justice Roberts fails to recognize that parents would not need to compete for school assignments if schools were academically comparable rather than vastly different within the same districts. The majority ignores reality; it ignores that, on average, throughout the United States, white children have regular access to better educational resources throughout their most formative years than colored children. In my view, under a constitutional regime that prohibits caste, government may not permit white children to have regular access to better educational resources than colored children without violating the central holding of Brown. The majority would use Brown, but render it sterile by ignoring the context in which its proponents argued that children should be assigned on a nonracial basis. I understood Brown to mean that white school officials violated the constitution when they assigned colored children to segregated, inferior schools. But it blinks reality to assert that either Seattle or Louisville promoted segregation in any way.

As a product of racially segregated schools and racially isolated communities, the Supreme Court could never convince me that we have achieved Brown's mandate of equal educational opportunity. If Brown only meant that children would be assigned on a nonracial basis, then it does not merit all the praise it has received from the Court. Brown should not be read to preserve racial advantages for white children or artificial integration. In context, Brown should be read to mean white people cannot relegate colored children to second class schools and colored people cannot relegate white people to inferior schools. I am convinced neither Seattle nor Louisville violated this principle so I would have sustained both plans. Even if all racial classifications are necessarily suspect, they are not all the same, and every member of the Court surely knows the distinction between invidious classifications and noninvidious ones. For if there is no difference, then strict scrutiny is always fatal in fact or a charade.

I was wrong about Justice Kennedy. He did not use these cases to overrule Grutter. It remains intact, for certain in higher education, and it may have some legitimate uses in the K-12 context. Moreover, Kennedy distinguishes general policies adopted with limited race-consciousness/awareness of racial demographics to achieve equal educational opportunity. School officials seeking to promote the benefits of educational diversity, including reducing the harmful effects of racial isolation, should not assign kids to schools by race or adopt racial balancing schemes. Instead, they should articulate the legitimate goal of promoting equal educational opportunity and adopt race-neutral strategies, recognizing the relevant local demographics. School officials can remedy the effects of past discrimination. They must justify all racial classifications, but they need not pretend to be race-blind. Kennedy will insist that the government show that race-neutral criteria failed before he will agree that a racial classification is narrowly tailored.

Kennedy has opened the door for school officials to promote diverse schools. My hope is that more officials will take his lead to champion equal educational opportunity. If they do so, parents will not need to school shop and their children will receive an adequate and equitable education at any school. Only then will America's legacy of educational apartheid end.