Contrary to conventional wisdom, the Supreme Court's recent decision in Parents Involved in Community Schools v. Seattle School District No. 11 could serve to broaden the permissible use of race beyond the boundaries presently permitted by the Court. In this highly fractionalized decision, five justices ultimately agreed that the race-based student assignment plans before their review could not withstand judicial scrutiny. One of these justices, Justice Kennedy, agreed with the plurality's conclusion, but rejected the plurality's assessment that it is never permissible to use race-preference student assignment plans absent evidence of de jure segregation. His concurrence, when read together with the reasoning of the Court's four dissenting justices, offers a plausible scenario under which future courts could find precedential support to uphold challenged race-preference student assignment plans as constitutionally permissible.
Leslie Yalof Garfield, Don't Count Them Out Just Yet: Toward the Plausible Use of Race-Preference Student Assignment Plans, 10 Rutgers Race & L. Rev. 340 (2008), http://digitalcommons.pace.edu/lawfaculty/610/.