The ‘Compelling Government Interest’ in School Diversity: Rebuilding the Case for an Affirmative Government Role

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how might it be enforced? This Article will attempt to answer these questions by exploring the potential legal sources of the federal government’s powers and duties with respect to avoiding racial isolation in the public schools and to the government’s affirmative obligation to promote integration. Part I will explore sources of legal authority for affirmative school diversity policies at the federal executive level. Part II will propose a new, more proactive approach to assessing state and local segregation impacts that the Department of Education could adopt within its existing Title VI authority. Part III will identify non-prescriptive funding incentives that the Department could include in its competitive grant programs to support school diversity. Finally, Part IV will suggest data metrics the Department could include in its data reporting programs to incentivize performance by state governments and local districts. In sum, the federal government has multiple tools at its disposal to advance the promise of Brown and Parents Involved. Its continuing failure to assert these inherent powers will inexorably result in increasing segregation at the local level.