Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration

Abstract

In deciding Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court of the United States will likely confront a critical issue to emerge from the lower court opinions on voluntary integration plans: whether school districts that use race as a factor in student assignment must comply with a legal requirement of individualized consideration. The Court has imposed such a requirement in other contexts, but it has not clearly explained what the concept of individualized consideration means and why particular forms of it matter.

This Article clarifies the meaning and function of individualized consideration as both a concept and a legal requirement. After defining the concept apart from any legal requirements, the Article surveys the Court's cases - from affirmative action in higher education, to race - conscious redistricting, to affirmative action in government contracting - in order to identify the principal concern to which different requirements of individualized consideration respond.

This survey reveals the key determinant of the type of individualized consideration that the Court requires in a given context: its judgment about how the use of racial criteria will likely impact racial balkanization in America over the long run. Accordingly, this Article assesses the constitutionality of the two plans before the Court in light of this concern. The question is how the use of race in student assignment affects balkanization.

After identifying three compelling interests that support race-conscious assignment plans, this Article recommends an individualized consideration requirement that is modest in its demands. This is because voluntary integration plans likely reduce balkanization when school boards make only limited use of racial criteria in granting or denying student requests for certain schools and do not impose significant burdens on individuals.

Finally, this Article applies the standard it proposes to the plans before the Court. It concludes that the Seattle, Washington plan is more suspect than the Jefferson County, Kentucky plan, but that both likely meet the individualized consideration requirement that the Court's cases suggest is most appropriate in this setting.