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Published in Print: June 10, 1998, as New Magnet School Policies Sidestep an Old Issue: Race

New Magnet School Policies Sidestep an Old Issue: Race

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As the days of desegregation by decree draw to a close, many schools and communities again find themselves asking how to preserve the perceived gains made under court-ordered plans--or to undo the perceived harm they inflicted. Past policies seem no longer to fit in a climate that looks with suspicion on drawing distinctions on the basis of race or ethnicity.

This uncertainty is compounded by demographic changes. In many cities, the stark contrast of black and white no longer exists. An influx of Hispanics and Asian-Americans and the sharp decline of white enrollment in many districts have challenged the assumptions that underlay traditional approaches to desegregation.

This week, Education Week begins a three-part special report exploring the strategies districts are using to continue and maintain desegregation in their schools.

Magnet schools--conceived as a means of promoting integration in racially divided communities--are proving to be nearly as adept at attracting discrimination lawsuits as they are at luring students.

As decades-old plans for integrating schools continue to unravel, challenges to magnet school admissions procedures are cropping up in city after city. In some cases, the challenges are mushrooming into broader attacks against a district's entire plan for integrating schools.

Most often, whites or Asian-Americans are protesting race-conscious policies that serve to exclude them from desirable programs. Occasionally, though, African-Americans are attacking entrance criteria or quotas that they see as favoring other groups.

The upshot is that many district leaders are revisiting how they use race and ethnicity to divvy up seats in their magnet programs, which often include some of their most highly regarded schools.

During these re-examinations, questions of ethnic diversity are not all that wind up on the table. Also at issue, in many instances, are such equally sensitive topics as how to identify children as gifted or talented, whether test scores and grades are valid measures of academic merit, and whether quality and diversity are complementary or incompatible.

In short, school leaders are being asked to referee between differing visions of what is fair. Struggling to reconcile competing interests, they must traverse a racial landscape laced with legal uncertainties and historical ironies.

"Thirty years ago, school districts were getting sued for not promoting diverse learning environments," said Maree Sneed, a lawyer with the Washington firm of Hogan & Hartson who counsels many districts in desegregation matters. "Now they're getting sued for actually doing what they were originally sued for not doing."

Rejections Spur Complaints

Magnet programs, designed to entice racially and ethnically diverse students from different neighborhoods, typically offer special themes such as science, the arts, or communications. Some focus on advanced academics or a distinctive educational approach, such as the Montessori method or a back-to-basics curriculum.

Since the 1970s, they have grown increasingly popular as much for their programmatic attractions as for their effectiveness as an integration tool--as the recent spate of court challenges makes clear.

Many of these legal fights center around the admissions process at selective programs for gifted, talented, or high-achieving students. Some of these elite public schools predated court-ordered desegregation but later became subject to it.

The plaintiffs are essentially arguing that two wrongs don't make a right--that inequities suffered by blacks or Hispanics do not justify violating the rights of other groups to be free from discrimination.

"People react to how unfair it seems that their child can't get into this wonderful program, which offers a private school type of education, because of their race," observed Christine Rossell, a political science professor at Boston University who specializes in desegregation. "That's enough to get them to go through the hell of a lawsuit."

Not all the challenges involve selective schools, or are even coming through the courts. In New Orleans, citizens' complaints to the U.S. Department of Education's office for civil rights led the city district this spring to agree to change its admissions policies.

Spearheading the effort was a local black activist who took particular aim at the entrance requirements at the city's most selective magnet school, claiming among other charges that its use of academic-ability tests penalized blacks.

Legal Uncertainty Prevails

As districts scout for solutions, a central problem is the lack of legal consensus on just how--and even whether--administrators can engineer the racial makeup of their schools if they are not under a direct court order to do so.

The uncertainty was underscored this spring when federal judges in Massachusetts and Virginia took opposite stances in similar cases involving magnet school admissions. The cases hinged on the question of whether the educational value of racial diversity in public K-12 schooling justifies policies that end up discriminating against some students on the basis of color.

Some desegregation experts argue that it was long ago established--as part of the 1971 U.S. Supreme Court decision in a landmark North Carolina case, Swann v. Charlotte-Mecklenburg--that school districts have broad authority to take race into account "to prepare students to live in a pluralistic society."

Those experts also contend that recent federal court decisions looking askance at race-based policies in higher education, government contracting, and other areas do not necessarily apply to public schools.

Even some critics of traditional desegregation efforts suspect that districts seeking to control the racial makeup of their magnet programs would be on solid ground if the issue were to come before the Supreme Court.

David J. Armor, a desegregation expert at George Mason University in Fairfax, Va., argued that such policies are legally justified because students choose to attend magnet schools instead of being assigned there.

"It's diversity as a choice," said Mr. Armor, who has helped districts fashion magnet school programs. "I find it hard to believe that a Supreme Court would not allow that."

But others say districts that grant preferences on the basis of skin color or ethnicity are on shaky ground. That may be especially true of districts that have been declared "unitary," a legal term meaning that they have been found free of intentional segregation and released from previous court orders.

"Right now, if I had to guess where the Supreme Court would come out on this, it would be that they would not permit race-based assignment in a unitary district," said Alfred A. Lindseth, an Atlanta-based lawyer who has been involved in many desegregation cases around the country.

Despite the clash of views, many experts agree that it will take another high court ruling--perhaps in one of the magnet school cases now pending--before the matter is fully clarified.

"The Supreme Court has not ruled definitively on it one way or another," Mr. Lindseth said. "There's no clear answer."

Policy Reviews Widespread

Amid this uncertainty, districts are being pushed toward revising their policies by lawsuits or other complaints of discrimination. Such challenges have arisen in Arlington County, Va.; Boston; Buffalo; Charlotte-Mecklenberg, N.C.; DeKalb County, Ga.; Houston; Louisville; New Orleans; and San Francisco.

Meanwhile, some communities, such as Broward County, Fla., Denver, and Oklahoma City, are taking steps to ward off such challenges after decades-old court cases have been brought to a close.

As districts reassess their policies, they often scrutinize not only the direct use of race and ethnicity but also other admissions requirements that may affect a program's student composition.

Which tests are used, how much weight they are given, and what other factors are considered in admissions decisions are all critical topics. And because shifting the criteria can affect how various groups fare, such changes are increasingly being seen by districts as a means of achieving their diversity goals without resorting to quotas or other legally questionable practices.

In this process, policymakers are figuring out new ways to give a leg up to students from minority groups that might otherwise be underrepresented in magnet programs. Such steps can range from giving extra points for overcoming such obstacles as poverty and lack of English fluency to granting preference to students from largely minority neighborhoods.

Still, some school systems, including Arlington County, Boston, and San Francisco, have found that even altering their policies to downplay race and ethnicity has not shielded them from legal challenges.

Boston scrapped its policy of reserving 35 percent of the seats for blacks and Hispanics at the city's three selective magnet high schools after a white student sued in 1996 over her rejection at the most sought-after, Boston Latin School. But the 63,000-student district retained race as a factor in admissions, prompting a second lawsuit.

Late last month, a federal judge in Boston sided with the district, concluding that the importance of integrated programs legitimizes the use of race. The judge also noted that the court, at the time it lifted its oversight of student assignments, had barred the district from resegregating its schools.

The Boston ruling, which is being appealed, ran directly counter to two successive decisions by the judge handling challenges by white students to magnet school admissions policies in the Washington suburb of Arlington.

Even though diverse enrollments might be preferable, "the court cannot conclude that the goal of diversity excuses racial discrimination," U.S. Judge Albert V. Bryan Jr. wrote in the latest of those rulings on April 14. The 18,000-student Virginia district is appealing the decision, which required it to conduct an admissions lottery without consideration to race, language, or income.

In San Francisco, officials modified their procedures for admitting students to the elite Lowell School after a group of Chinese-Americans filed suit protesting that they had to score higher on entrance exams than other groups. The changes did not mollify the plaintiffs, however, and their bid to overturn a lower-court decision against them is pending.

Court Orders Ending

Fueling the trend toward overhauling magnet school policies is the growing frequency with which judges are freeing districts from court supervision. With those desegregation orders gone, systems are far more vulnerable to challenges of their race-conscious policies.

Such districts include the fast-growing Broward County system, which serves Fort Lauderdale and the surrounding area. After a federal judge unexpectedly ended the 224,000-student district's desegregation order in 1996, officials scrambled to devise a less race-conscious policy for magnet schools that they felt would stand up in court.

They came up with a plan in which half the slots in programs with more applicants than seats are filled through a strictly random lottery. Then a second drawing is held in which students from groups that were underrepresented in the first lottery are given extra chances. The categories considered include not just race and ethnicity, but also socioeconomic background, special needs, and English fluency.

Feds Change Rules

That approach reflects some experts' view that race can now be used in magnet school admissions, but only in combination with other factors, and only if it is not the overriding consideration.

"We never weight race alone," explained Diane Carr, the director of magnet programs in the Broward County district. "It's never a single factor."

Also pushing districts to re-examine their policies are changes in the eligibility standards for grants from the federal Education Department's Magnet Schools Assistance Program.

In the coming months, the department expects to award nearly $300 million in grants to be paid out over the next three years. Established in 1984, the program supports the creation or expansion of magnet programs with the purpose, among other aims, of reducing, eliminating, or preventing the isolation of minority groups in public schools.

This past winter, program administrators issued new rules in an effort to comply with a 1995 Supreme Court decision that restricted the use of race or ethnicity in government programs. Although that case concerned federal transportation contracts, the Clinton administration ordered a review of race-conscious programs in all agencies.

The rules direct districts seeking magnet school grants to try or seriously consider race-neutral means of admitting students, unless they are under integration orders from a judge or state civil rights agency.

Jeanette J. Lim, an administrator in the Education Department's office for civil rights, said the rules seem to have created "a trend toward less set-asides and more lotteries" in admissions.

In Oklahoma City, for example, officials have proposed using a race-weighted lottery for seven new magnet programs they want to open with a $10.8 million, three-year federal grant. But they want to retain their current system for the district's existing magnet programs, in which officials directly ensure that each program's enrollment reflects the district's overall ethnic breakdown.

To Ms. Rossell of Boston University, the department's new rules reflect the balancing act that school leaders must perform as they reassess admissions at their flagship schools.

"You've got to reduce racial isolation without taking race into account," she said. "That is so strange. We're sort of in the twilight zone."

Vol. 17, Issue 39, Pages 10-12

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