Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K–12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy’s concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy’s past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny. Indeed, in Parents Involved, Justice Kennedy reveals his three principal concerns: classification of individuals by race, courts interfering with school districts in their daily functions, and the inappropriate use of strict scrutiny when school districts do not intend to affect students because of their race. This Note contends that all three of those concerns militate in favor of using strict scrutiny for rezoning and site selection plans. Such plans most likely will result in the classification of students by race, strict scrutiny of such plans will not prevent school districts from performing their daily functions, and courts may still implement a lower level of scrutiny when school districts do not intend to act based on race. School districts should, therefore, proceed with caution and ensure that any racially based rezoning or site selection plans they use are narrowly tailored to achieve the compelling interest of diversity.
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