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Published in Print: March 29, 2000, as Court Lets Stand Ruling On Student Transfers

Court Lets Stand Ruling On Student Transfers

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The U.S. Supreme Court last week declined an invitation from an array of education groups to use a Maryland case to decide whether school districts may voluntarily consider race in making student assignments.

The justices, without comment, let stand a federal appeals court ruling that rejected the Montgomery County, Md., district's race-conscious transfer policy for magnet schools.

The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ordered the district to allow a white student to transfer from his neighborhood elementary school, where blacks outnumbered whites, to a mostly white magnet school. The 125,000-student district in suburban Washington had rejected the transfer of 1st grader Jacob Eisenberg in 1998, maintaining that it would contribute to racial isolation at his neighborhood school.

The appeal in Montgomery County Public Schools v. Eisenberg (Case No. 99-1069) was the first to reach the high court from a wave of recent litigation challenging race-based student-assignment policies in school systems without a history of segregated schools or where court-ordered desegregation orders have been lifted.

The National School Boards Association, joined in a friend-of- the-court brief by 16 other education groups, had urged the justices to accept the case and provide school leaders with guidance "on how they may use race, together with other factors, in granting or denying transfers, or devising overall student-assignment plans, or admitting students to magnet schools or special academies."

The brief made clear that the NSBA and groups such as the American Association of School Administrators favor race-conscious policies to promote diversity and limit racial isolation public schools.

"Diversity in K- 12 schools serves the purposes of promoting citizenship and harmony among people of different backgrounds and experiences," the groups told the high court.

'Racial Balancing'

The Montgomery County case began when Jacob Eisenberg's parents applied to transfer their son from Glen Haven Elementary School to Rosemary Hills Elementary School, which had a mathematics and science magnet program.

In rejecting the request, the school district noted that white enrollment at Glen Haven had dropped from 39 percent in 1994- 95 to 24 percent in 1997-98. Black enrollment at the school, meanwhile, had risen to 41 percent.

The boy's parents sued, alleging a violation of the 14th Amendment's guarantee of equal protection of the law. They lost in federal district court, but the 4th Circuit court ruled in their favor in October. Nevertheless, Jacob has attended his neighborhood school since the fall of 1998.

Ruling unanimously, the three-judge appellate panel found that the district's transfer policy was a form of "racial balancing" that must be analyzed under the strictest legal test.

The judges declined to decide whether the promotion of diversity was a compelling governmental interest that would allow the policy to be upheld. The district's policy was not narrowly tailored to such a goal even if it were a compelling interest, the judges ruled.

"Added to the racial balancing is the fact that Jacob's transfer request was refused because of his race," the appellate panel said. "Such race- based governmental actions are presumed to be invalid and are subject to strict scrutiny. Nothing in this record overcomes that presumption."

In its appeal to the Supreme Court, the Montgomery County district argued that educators should be given greater leeway to assign students with racial diversity in mind.

The willingness of the county school board to ask the Supreme Court to review the issue was notable because several months earlier, the Boston school board chose not to appeal a court ruling that barred the consideration of race in admissions to the prestigious Boston Latin School.

The Boston board said it was heeding the advice of civil rights advocates who feared the conservative majority on the Supreme Court would use the case to prohibit race-conscious student assignments nationwide. ("Boston Declines an Appeal of Ruling on Admissions Policy," Feb. 10, 1999.)

The court's majority has been highly skeptical of government classifications based on race, and many legal experts believe it is only a matter of time before it addresses the issue in education. In its 1997-98 term, the high court was scheduled to consider a case involving the Piscataway, N.J., district's decision to lay off a white teacher over a black colleague with the same seniority. But the district reached a settlement with the white teacher shortly before the date for oral arguments.

'Touchy-Feely Mantras'

Edwin C. Darden, a senior lawyer with the NSBA, said it remains an unsettled question whether diversity is a valid basis for race-conscious decisions by school districts.

"The message we're trying to send is that there are pure educational benefits to children learning in a diverse educational environment," he said.

But Linda Chavez, the president of the Center for Equal Opportunity, a Washington organization that opposes affirmative action and other race-conscious policies, said no child should be refused a place in public school based on race.

"Touchy-feely mantras of diversity and insulting claims that minorities can't learn as well unless they sit next to whites cannot justify discrimination," she said.

Similar cases are in the legal pipeline. Pending at the high court is an appeal from the Arlington County, Va., school district of another 4th Circuit ruling that barred consideration of race in admissions to a magnet school. The justices could decide later this spring whether to accept that appeal.

Vol. 19, Issue 29, Pages 28,33

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