Retiring Supreme Court Justice Anthony Kennedy paved the way for the Jefferson County Public Schools student assignment plan in use today.
In 2007, he voted with the majority on the Court when it struck down the JCPS assignment plan in place at the time. But, while he didn’t write the majority opinion, he wrote a separate opinion stating that diversity in schools is a valuable goal, and opened the door for achieving diversity in a broader way.
His opinion spelled out just how a school district could encourage diverse school enrollments and declared that, “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.”
He said school districts “are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”
In other words, you can’t just simply sort kids by race. The JCPS plan before the Court assigned students based on their choices, but also based on race with a goal of schools having no less than 15 percent and no more than 50 percent black students.
Kennedy offered suggestions of what could pass a legal challenge, writing, “School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, 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.
“These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible,” he said.
JCPS is on the second version of its plan since that Supreme Court decision, and has used Kennedy’s guidance as a way forward. Rather than classifying individual students by race or income, the current plan categorizes neighborhoods using certain demographics (including, but not only, race), with the goal of no school being completely populated by children from neighborhoods with high poverty and low educational attainment. It offers lots of choice for families, including various magnet schools.
This plan was created with the guidance of Dr. Gary Orfield of UCLA and his team. He had worked with JCPS years before, and presented the school board with updated information about the value of diverse schools. He and his colleagues conducted a block-by-block analysis of Louisville’s neighborhoods, creating a plan that shortened bus rides and recognized that diversity isn’t only black/white, but takes into account the variety of nationalities and races of the area, along with income and education definitions.
The 2007 Supreme Court case is a significant historical marker for JCPS and its decades-long effort to first integrate schools, and more recently to achieve some diversity based on who all lives here.
Justice Kennedy’s input on the opinion of the Supreme Court at that time is important to remember. It is a significant piece of the history of this community and its efforts over three decades to abide by court orders to desegregate and, after the court order was lifted, to continue working toward the goal of valuing diverse learning communities for students.