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Published in Print: July 9, 2003, as Justices Give K-12 Go-Ahead to Promote Diversity

Justices Give K-12 Go-Ahead to Promote Diversity

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The U.S. Supreme Court's measured approval of using race in college admissions, and its strong endorsement of the value of classroom diversity, have given a green light to a variety of race-conscious practices in K-12 schools, legal experts say.

The high court on June 23 reaffirmed affirmative action in principle and upheld a plan that took race into account at the University of Michigan law school. But the justices struck down the university's undergraduate-admissions policy, which awarded bonus points to applicants from underrepresented minority groups.

While the decisions in the law school case, Grutter v. Bollinger (Case No. 02-241), and the undergraduate case, Gratz v. Bollinger (No. 02-516), were primarily about admissions practices in higher education, those concerned with precollegiate education were paying close attention.

"What the court recognized in the Grutter case is that affirmative action is the direct legacy of Brown v. Board of Education," the 1954 school desegregation ruling, said Elise Boddie, a lawyer and the director of the education program for the NAACP Legal Defense and Educational Fund.

Affirmative action opponents, meanwhile, say they will closely watch the particulars of how race is used by elementary and secondary schools and will continue to challenge policies that, in their view, are not consistent with the high court's decisions in the University of Michigan cases.

"For those public school districts with the liberal, elitist idea that minorities are inherently inferior, there is going to be a lot more litigation," said Gary G. Kreep, the executive director of the United States Justice Foundation, an Escondido, Calif.-based group that has challenged race-conscious policies in several school districts in recent years.

Topic Rarely Addressed

The high court has had relatively little to say about affirmative action in education at any level over the past 25 years.

There was the landmark 1978 decision in Regents of the University of California v. Bakke, which upheld the consideration of race as one factor in admissions but outlawed rigid racial quotas. There was also Wygant v. Jackson Board of Education, a 1986 case in which the justices struck down a district's policy that set racial quotas for teacher layoffs. Other cases have addressed quotas in public contracting.

But the education community doesn't get legal statements as sweeping as those in the Michigan cases very often. Justice Sandra Day O'Connor's majority opinion in the law school case laid out principles that will reverberate through schools at every level of education.

In the opinion, Justice O'Connor said that remedying past discrimination was not the only governmental purpose for using race that can survive strict scrutiny, the court's highest legal test.

The Michigan law school policy considering applicants' race to achieve a "critical mass" of students from underrepresented racial and ethnic groups passes that test because the school has a compelling interest in attaining a diverse enrollment, she wrote. And the law school admission plan, which involved an individual review of each applicant, was narrowly tailored to achieve that interest, she found.

What was critical for K-12 educators was that a majority of the justices put a stamp of approval on the diversity rationale, which in the Bakke case was enunciated only in a lone concurring opinion by Justice Lewis F. Powell Jr. Precollegiate schools rely on the diversity interest for a range of race-conscious policies, on everything from admitting students to competitive magnet schools to balancing teacher and student assignments by race.

The educational benefits of diversity "are substantial," Justice O'Connor said in the ruling. She seemed convinced by the friend-of-the-court briefs by corporations and military leaders that diversity in higher education was needed to produce a diverse workforce and armed forces.

But she also harked back to K-12 high court rulings in Brown and in Plyler v. Doe—a 1982 case that guaranteed the right of undocumented immigrants to a free public education—for the idea that diverse learning environments help schools in their role in "sustaining our political and cultural heritage."

All nine justices had something to say in the two Michigan cases. Joining Justice O'Connor in her key Grutter opinion upholding affirmative action were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

Dissenting in the law school case were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

In his dissent, Justice Thomas quoted the 19th-century black abolitionist Frederick Douglass for the proposition that African-Americans do not want or need the benevolent interference of white elites.

"Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators," he said.

Justices O'Connor and Breyer joined Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas in striking down the University of Michigan's undergraduate-admissions system, which assigned a significant number of points to applicants who were in the targeted groups of underrepresented minorities—African-Americans, Hispanics, and Native Americans.

Justices Souter and Ginsburg said they would uphold the undergraduate system, while Justice Stevens said the high court should not have reached a decision in the undergraduate portion because of procedural issues.

Landmark Decisions

The rulings clearly were watersheds for higher education, even though a relatively small percentage of institutions have the competitive status that makes race a pivotal factor in admissions.

But even many precollegiate educators may not realize the extent to which race is also a frequent consideration in K-12 schools, apart from court-supervised desegregation programs.

"The court's ruling on the constitutional issues under consideration could affect the authority of elementary and secondary schools (public and private) to create the kinds of diverse educational environments that strengthen the educational experience of all students," said a friend-of-the-court brief filed in the Michigan cases on behalf of such groups as the National School Boards Association, the National Association of Secondary School Principals, the Council of the Great City Schools, and the National Alliance of Black School Educators.

"Research shows that racially isolated learning environments have a negative effect on educational opportunity and that diverse learning environments lead to improved educational opportunity, and thereby, achievement," the K-12 groups' brief said.

Scott R. Palmer, a Washington lawyer who helped prepare the groups' brief, said the Michigan law school decision endorsing affirmative action was a major victory for elementary and secondary schools as well.

"The court strongly endorses the authority of educational leaders to value diversity," said Mr. Palmer, who was a civil rights official in the U.S. Department of Education under President Clinton. "The court recognized the civic benefits of bringing a diverse group of students together. Those benefits accrue in the K-12 context, too."

But Mr. Palmer warned that school districts will have to examine the rulings to see how specific race-conscious practices hold up, given that the court struck down Michigan's system of automatically assigning points to certain minority-group members in undergraduate admissions.

"School districts are going to have to examine the Supreme Court's holdings to make sure that they have the types of programs that fit closely with the diversity rationale and that treat everyone as individuals," he added.

Sinking Ships

Lower federal courts and even state courts have issued conflicting rulings about the constitutionality of race-conscious policies in K-12 education in recent years.

Late last month, the Washington Supreme Court ruled 8-1 that the Seattle school district could consider race as a tiebreaker for student assignments to its high schools. The ruling came June 26, just days after the U.S. Supreme Court's Michigan decisions, although the state court did not cite the federal high court ruling.

The Washington state ruling is important for another reason. The state high court was forced to decide whether the Seattle district's policy violated a state ballot initiative that outlawed racial preferences in education. California has a similar state constitutional prohibition on racial preferences, and affirmative action opponents have suggested that, in the wake of the Michigan rulings, they may go state to state to try to win such measures.

The Washington Supreme Court, citing the benefits of diverse school classrooms, said using race as an assignment tiebreaker to achieve racially balanced classrooms did not amount to a racial preference under the state ballot initiative.

Mr. Kreep of the United States Justice Foundation hopes that one of his group's challenges to a K-12 affirmative action policy will fare better. The group is challenging policies in the Los Angeles school system that promote racial balance among school faculty members.

In that case, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had asked the California Supreme Court for its interpretation of whether such a policy violates the state's constitutional measure known as Proposition 209, which prohibits racial preferences in education and state contracting.

The state court recently declined that request, though, so now the 9th Circuit court will likely make its own determination of whether the Los Angeles policy violates the state prohibition—just after the U.S. Supreme Court has given affirmative action a big boost.

"The Supreme Court has opened up a big can of worms that is going to be hard to keep in the box," Mr. Kreep said.

Sharing such concerns is Michael Greve, a legal scholar who helped get the ball rolling against affirmative action when he was with the Center for Individual Rights. The Washington-based legal-advocacy group brought the challenges to the admissions system at the University of Texas law school, in the case known as Hopwood v. Texas, and to the University of Michigan policies.

"The Gratz and Grutter cases were the flagships in the movement" to fight race-conscious policies in higher and precollegiate education, he said. "If your flagship is sunk, then the smaller ships in your convoy are going to sink, too."

"Programs that have a tolerable diversity component to them are home free, as long as schools paper it correctly and obfuscate," he said.

Still, Justice O'Connor expressed hope that the need for affirmative action will disappear in another generation or so.

"We expect that 25 years from now," she said in opinion in Grutter, "the use of racial preferences will no longer be necessary to further the interest approved today."

Vol. 22, Issue 42, Pages 1,28,30

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