Law & Courts

High Court to Consider Use of Race

By Andrew Trotter — June 13, 2006 7 min read
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By accepting two appeals on the voluntary use of race in assigning students to public schools, the U.S. Supreme Court will likely decide the constitutionality of widespread practices that school districts use to promote diversity. And the decision could affect schools in unforeseen ways.

In both cases, parents of white children have challenged plans that have used race as a factor in assigning students to schools. The justices accepted the two cases on June 5 for the new term that begins in October.

The court’s decision to take the appeals involving the Jefferson County, Ky., and Seattle school systems means the court “is probably looking at the whole universe of the question of diversity in schools,” said Francisco M. Negrón Jr., the general counsel of the National School Boards Association, based in Alexandria, Va.

Sharon L. Browne, a lawyer with the Pacific Legal Foundation, based in Sacramento, Calif., said, “Together, these cases could put an end to schools’ using race as a factor to decide where children can attend public school.”

Ms. Browne, whose organization has filed friend-of-the-court briefs on the side of challengers in both cases and opposes race-conscious student-assignment plans, said the use of race violates the equal- protection clause of the U.S. Constitution by treating students unequally, while also “sending the wrong message to our children, teaching them that race matters.”

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 weighed the constitutionality of the University of Michigan’s undergraduate college and law school admissions policies, which took race into account in different ways. The rulings upheld race-based affirmative action in principle but struck down some aspects of Michigan’s admission policies.

In her opinion for the 5-4 majority in Grutter upholding the Michigan law school’s race-conscious admissions policy, then-Justice Sandra Day O’Connor said the benefits of having a diverse student body were “substantial.”

“[N]umerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society,” Justice O’Connor said.

In December, the Supreme Court turned down an appeal by parents who had challenged a race-conscious school assignment plan in Lynn, Mass. (“High Court Won’t Hear Race Appeal,” Dec. 14, 2005.)

The refusal to step into the Lynn case, when Justice O’Connor was still on the court, combined with the fact that the justices weighed for several weeks whether to accept the Seattle and Kentucky appeals, suggested to some legal observers that the conservatives on the newly configured court of Chief Justice John G. Roberts Jr. may have seen an opportunity to curtail affirmative action and were taking it.

Race Used Widely

There is no solid count of the number of school districts that voluntarily consider race in making school assignments, although the Pacific Legal Foundation contends there are more than 1,000.

“I’d say a fair number use race in some way, shape, or form, on a limited basis, to try to maintain some semblance of racial balance, where they can,” said Michael D. Casserly, the executive director of the Council of the Great City Schools, in Washington, which represents large urban school districts. “None of these districts that use race, use race where it is an overwhelming factor.”

While many districts remain under court-supervised desegregation plans, the appeals before the Supreme Court deal with voluntary consideration of race. The Jefferson County, Ky., district was under court supervision for 26 years, but the district was declared unitary, or free of official segregation, in 2000. The Seattle district has never been under a court order to desegregate.

But considering race in school assignments is not just about correcting past discrimination, said Laura Schulkind, a San Francisco lawyer who represents schools. Many districts seek racial diversity to teach students how to succeed in a diverse world.

What’s more, the federal No Child Left Behind Act requires schools to track the achievement of subgroups of students broken down by race and ethnicity, as well as such factors as whether they are English-language learners, come from low-income families, and have disabilities. Failure to reach the required test-score growth by any of those subgroups may carry consequences for schools and districts.

Ms. Schulkind suggested that if the Supreme Court were to bar race-conscious policies broadly in public schools, “if there are programs that explicitly target some [racial] subgroups, those might be subject to attack.”

Districts’ Policies

In the appeal from the 46,200-student Seattle district, a parents’ group is challenging an assignment policy that allows entering 9th graders to select any of its 10 high schools. 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.

Precollegiate Racial Diversity

The U.S. Supreme Court last week agreed to take up the question of whether K-12 school districts may voluntarily consider the race of students in making school assignments.

Jefferson County, Ky. Racial makeup

Jefferson County, Ky. Enrollment: 97,000
The plan:The “managed choice” plan includes consideration of race for some student assignments. The plan seeks to have a black enrollment of at least 15 percent and no more than 50 percent at each school. Consideration of race was more explicit at nine “traditional” schools.
Lower-court ruling: On July 21, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously upheld most aspects of the district’s plan. The court adopted the reasoning of the federal district judge in the case, who ruled that the plan was narrowly tailored to achieve diversity, but that the racial categories used for the traditional schools did not pass muster.

*Jefferson County racial makeup does not include district’s special schools.

Seattle Racial makeup

Seattle Enrollment: 46,200
The plan:The Seattle school district has an admissions policy for its 10 high schools that says entering 9th graders may select any school. They are assigned to their first choice when possible, but if a school is oversubscribed, the district makes an assignment based on a variety of indicators, including whether the student will help bring racial balance to the school. A parents’ group filed a lawsuit in 2000 challenging that “racial tiebreaker” provision, which has been suspended since 2002, pending the final outcome of the court case.
Lower-court ruling: On Oct. 20, a 7-4 majority of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the district’s policy as narrowly tailored to achieve racial diversity.

SOURCES: Jefferson County and Seattle School Districts

That plan was upheld last October by a 7-4 majority of the 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 district, which includes Louisville.

A parent is challenging the plan, which aims for 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 is more explicit at nine “traditional” schools in the district that follow a back-to-basics curriculum.

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 court adopted the reasoning of the federal district judge in the case, who had ruled that the district’s plan was narrowly tailored to achieve diversity, but that the racial categories used for the traditional schools did not pass muster.

Partisans on both sides agree that the Seattle and Jefferson County cases present a crucial test of the applicability of the University of Michigan decisions in K-12 education.

“We were 0 for 3 [in federal appeals courts’ decisions that upheld the use of race in school assignment] since Grutter and Gratz,” said Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a Sterling, Va.-based group that opposes racial preferences. “There are at least some justices that are disturbed by this trend.”

Mr. Clegg said that the justices may see important differences between universities and K-12 schools. For a start, federal courts have recognized that there is First Amendment protection for academic freedom in universities that isn’t necessarily as strong in K-12 schools. And the “robust exchange of ideas” that Justice O’Connor cited as a benefit from a racially diverse student body in Grutter is less applicable in K-12 schools, which are “more structured and top down,” Mr. Clegg said.

He added that as the nation’s era of tolerating official racial segregation passes further into history, “the question is not whether diversity is a good thing or not, but whether it is such a good thing that it justifies racial discrimination.”

‘A Compelling Interest’

But Gail Sunderman, a senior researcher at the Civil Rights Project at Harvard University, argued that “diversity in school assignment is a really important way for schools to address a compelling interest for our country—and I think without any focus on using race in making school assignments we’re not going to achieve that.”

The Supreme Court’s ruling, likely to come next year, could “impact more people [than the Michigan higher education cases], because everyone goes to elementary and secondary schools,” Ms. Sunderman said, adding, “I’m not optimistic about the outcome.”

Justice O’Connor, who held the decisive vote in the two Michigan cases, has retired and been replaced by Justice Samuel A. Alito Jr. Then-Chief Justice William H. Rehnquist, who voted against affirmative action, died in September and was replaced by Chief Justice Roberts.

Speculation has surged among school law experts about what the revised makeup of the Supreme Court will mean for K-12 racial diversity. Mr. Negrón noted that when Chief Justice Roberts was an attorney, he represented school districts in Supreme Court appeals. “We’re hoping he brings that perspective to the bench,” he said.

The two appeals accepted for review are Parents Involved in Community Schools v. Seattle School District No. 1 (Case No. 05-908) and Meredith v. Jefferson County Board of Education (No. 05-915).

A version of this article appeared in the June 14, 2006 edition of Education Week as High Court To Consider Use of Race

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