In his concurrence, Justice Anthony Kennedy opened up a new avenue for educational justice by contending that other methods of achieving integration — like revising school attendance zones — are constitutionally permissible so long as they do not sort and label individual children by race.Exactly how did Justice Kennedy create a new opening for this solution? It's been available all along, hasn't it? The most you can say is that the case has generated some new energy over the issue of school integration and that Congress could harness this energy to impose new requirements on state and local government.
Congress has an opportunity to take advantage of the opening created by Justice Kennedy later this year when it reauthorizes the federal No Child Left Behind Act. The law gives children the right to transfer from a low-performing school to a high-performing school if the low-performing school has failed to demonstrate adequate improvement two years after being warned of its shortcomings.
Unfortunately, the transfer provision has until now been a bust. Less than 3 percent of eligible children have been able to transfer, in part because of the scarcity of space in high-performing schools within most urban districts. Although the law does not prohibit transfers between urban and suburban schools, it offers no inducements to the states to make this possible.
Democrats in the Senate should therefore introduce an amendment to authorize and make easier cross-district transfers — not on a specifically race-conscious basis, but solely to fulfill the professed intention of the law.
But why should the case be used to justify this imposition? The Supreme Court restricted a pro-integration program. Shouldn't local government respond to the case by trying to devise new programs that take advantage of the advice provided by Justice Kennedy?
It seems to me that the uniform national solution to a problem comes into play when the work of local government can be impugned. That's not the case here. It's exactly the opposite.
And why assume that there is a one-size-fits-all response to the Supreme Court's limitation and that you know what it is? Isn't this exactly the situation where you want decentralized efforts by local government that are fine-tuned to local conditions and preferences and that can serve as useful experiments for us all to learn from?