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Supreme Court to Consider Use of Race in K-12 School Assignments

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The U.S. Supreme Court agreed today to consider the constitutionality of weighing race as a factor in assigning students to public schools, combining appeals from two cases involving voluntary racial-diversity plans in urban school districts.

The court accepted the appeals for its term that begins in October. The justices had been weighing for several weeks whether to grant review of the appeals.

One of the appeals is from is from the 47,000-student Seattle district. A parents’ group, Parents Involved in Community Schools, is challenging the school district’s assignment policy for high schools that allows entering 9th graders to select any of its 10 high schools. However, if a student’s first choice is oversubscribed, the district uses a variety of factors to make the assignment, including whether the student will help bring racial balance to a school.

That plan was upheld last October by a 7-4 majority of the full U.S. Court of Appeals for the 9th Circuit, in San Francisco.

The second case is a challenge to a “managed-choice” student assignment plan adopted in 2001 by the 97,000-student Jefferson County, Ky., school district, which includes Louisville.

A parent is challenging the plan, which seeks to have an African American enrollment of at least 15 percent, and no more than 50 percent, at each of the district’s elementary and secondary schools without individual review of any student. The consideration of race was more explicit at nine “traditional” schools in the district.

Most aspects of that plan were upheld unanimously in July 2005 by a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. The appeals court adopted the reasoning of the federal district judge in the case, who ruled in 2004 that the 2001 plan was narrowly tailored to achieve diversity, but that the racial categories used for the traditional schools did not pass muster.

New Makeup of High Court

The cases are the first occasion in which the high court may revisit two landmark decisions on affirmative action in education it issued in 2003. In Grutter v. Bollinger and Gratz v. Bollinger, the court considered admissions policies from the University of Michigan’s undergraduate college and its law school to weigh the constitutionality of considering race in admissions. The rulings upheld race-based affirmative action in principle but struck down some aspects of Michigan’s admission policies.

Significantly, the authors of the majority opinions of those two decisions, Justice Sandra Day O’Connor, who wrote the majority opinion for the 5-4 ruling in Grutter, and Chief Justice William H. Rehnquist, who authored the opinion in the 7-2 Gratz decision, are no longer on the court. Justice O’Connor retired early this year upon the confirmation of her successor, Justice Samuel A. Alito Jr. Chief Justice Rehnquist died last September, and soon after John G. Roberts Jr. was confirmed as chief justice.

There is bound to be much speculation among school law experts about what the revised makeup of the Supreme Court will mean for racial diversity in K-12 education.

The two appeals accepted for review are Parents Involved in Community Schools v. Seattle School District (Case No. 05-908) and Meredith v. Jefferson City Board of Education (No. 05-915).

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