June 01, 2009

Accepting Justice Kennedy's Dare

Accepting Justice Kennedy's Dare: The Future of Integration in a Post-PICS World

Abstract: In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony Kennedy, in his PICS concurrence, recognized this and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, the public schools of Jefferson County (Louisville), Kentucky, one of the districts rebuked in PICS, have accepted Justice Kennedy’s dare by crafting a nuanced and race-conscious student assignment plan aimed at promoting broadly-defined diversity and increasing the quality of education across the district.

The article argues two distinct points. First, it argues that the new plan is a constitutionally permissible response to PICS. Second, it argues that the new plan’s broadening of both the definition of diversity and the mission of a school district represents the beginning of a new post-Brown era that is responsive to the realities of public education in the 21st century. By tethering its analysis of PICS - and specifically of Justice Kennedy’s concurrence - to a specific response to that decision, the article provides a detailed analysis of the new constitutional framework in this area. Ultimately, the article argues that because it is both constitutional and educationally-relevant, the new plan represents the future of integration for any district willing to make the commitment to providing the educational benefits of diverse public schools to its students.

This article appeared in the Fordham Law Review.  The full article is available here.