Abstract:
This Article examines the ideological differences among the
current Court over the interpretation and application of federal
law, and the effect these differences have on unsettling prior Supreme Court precedent. Part I reviews the precedent that led
to the Court’s conclusion that race-conscious admissions policies
in the context of higher education did not violate the Equal
Protection Clause of the Fourteenth Amendment. Part II
examines the circuit court cases that held the diversity-based
benefits identified in the context of higher education justified the
exclusive use of race to eliminate racial isolation and segregation
in primary and secondary schools. Part III contends that the
ideological differences among the current Court created a fourfour-
one split that still permits the flexible use of race to
integrate public schools. Part IV concludes that, in the
aftermath of Parents, local governments can reduce racial
isolation and segregation in public schools and avoid strict
scrutiny by making school assignments based on socioeconomic
status (“SES”) factors because SES assignment plans neither
burden a fundamental right nor use racial classifications to
determine whether children can attend the schools of their choice.