In a 4 + 1/2 to 4 decision, the U.S. Supreme Court struck down today the race-based public school student assignment programs in Seattle and Jefferson County, Kentucky.

Both districts had argued that assigning students to schools based on race was necessary to ensure diversity and improve achievement among minority students. The ruling majority – the Court’s four conservatives plus Anthony Kennedy – said they failed to make that case.

The reason it was a 4.5 to 4 verdict, and not a vanilla 5 to 4, is that Kennedy hedged his bets, subscribing only to part of the majority’s opinion. Kennedy diverged from the conservatives in maintaining that race could theoretically be used for some purposes under some circumstances, and even suggested a few examples. None of them, however, were much like the racial assignment programs at issue in this case.

Pundits may make a big deal out of Kennedy’s “dissentagreement” (tm), but so far many seem to be missing one of its crucial elements. He, like the conservatives, believes that a district needs to prove there is no racially neutral way of advancing the goals of diversity and minority student achievement before they can start moving black and white faces around like pawns on a chessboard.

And you know what? There IS a racially neutral alternative: school choice.

I went through the key relevant evidence on this when oral arguments were heard. The same still applies. A good school choice program including public and private schools would improve residential integration, increase meaningful integration within schools, improve minority student achievement, and improve minority student attainment (i.e., highest level of education achieved). All that in a racially neutral program that benefits all students. Let’s hope it doesn’t take too much longer for policymakers to realize this, for kids’ sake.