In order for public schools to try to reduce or eliminate "one-race" schools that largely reflect local housing patterns, they must be able to borrow from the college level the idea that the achievement of "racial diversity" in learning is constitutionally acceptable if based in part on race-based selection. That is the principle established by the Court in Grutter v. Bollinger in 2003. And, while Kennedy dissented on the particulars, he had not totally rejected the core principle. On Monday, however, he repeatedly stressed that, for him, Grutter was limited to higher education.
"That case is completely inapplicable" to the K-12 cases now before the Court, he said at one point as the Court heard the cases of Parents Involved in Community Schools v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915), involving the sometime use of race in picking which school a child may attend in a student-choice assignment plan. The Court, Kennedy, had never said that a school district that was not seeking toi end official segregation can "turn around and use an individual student's race" in assigning that student to a school. He commented that the Court, in the Grutter decision, "went as far as it could away from" the principle that an individual's race cannot be the determining factor in the education setting.
I disagree, while SCOTUSBlog is probably correct about how Kennedy will vote as the swing justice, there are options available to the City of Seattle that can accomplish the same thing, and more for public school equality after the current plan is thrown out.
There was discussion arround the time of the Grutter and Bollinger decisions regarding the Texas plan for higher education, which guaranteed low income students who were in the top 10% (or something like that, its possible I've got the number wrong) in their graduating class regardless of what school they attended, admission to a Texas public University. However, what happened was that UT overwhelmingly took the students from better schools and the students from low achievement schools got pushed aside to less esteemed State institutions. The plan faced problems in its implementation as I just pointed out, and also in the difficulty of using class distinctions for higher education. However, what Seattle could do is continue a program similar to what they are doing now, only using distinctions of economic class rather than race. There is a known correlation between the two, so Seattle would be ensuring a similar racial outcome to what they have under the present system with the added benefit of ensuring that there is diversity of wealth within schools, which will go farther for using education policy as a means of achieving social equity. Once rich kids are attending inner city schools the broader public is more likely to work for the improvement of those schools, rather than being seen as "someone else's problem" they become everyone's. So while SCOTUSBlog is probably correct about the way Kennedy will swing the Court, Seattle will still be able to do as much as they are doing now towards integration and more if they simply replace the emphasis on race with an emphasis on class.