Law & Courts

High Court Weighs Racial-Diversity Plans for Schools

By Andrew Trotter — December 04, 2006 5 min read
Harry J.F. Korrell, a lawyer representing a Seattle group called Parents Involved in Community Schools, talks outside the U.S. Supreme Court on Dec. 4 after giving oral arguments against the use of race in assigning students to schools.
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The U.S. Supreme Court today heard oral arguments in two cases that challenge the constitutionality of school districts’ use of race-conscious plans to assign their students to schools.

The court’s more conservative members appeared highly skeptical of the plans in the Seattle and Jefferson County, Ky., school districts, which sometimes take race into account in assigning students to schools, with the goal of maintaining or creating racial diversity similar to the overall student population of the districts.

“The problem is that … you’re characterizing each student by reason of the color of his or her skin,” Justice Anthony M. Kennedy said to Michael F. Madden, the lawyer defending Seattle’s race-conscious tiebreaker for its high schools. “It seems to me that [race] should only be, if ever allowed, allowed as a last resort.

Justice Anthony Kennedy

In this excerpt, Justice Anthony M. Kennedy expresses his concerns about the Seattle school district’s race-conscious policy to the district’s lawer, Michael F. Madden.

Justice Kennedy is viewed as the potential swing vote in the case, and most of his comments were skeptical of the districts’ use of race.

Some of the court’s more liberal members appeared supportive of letting school officials take race into account.

Justice Ruth Bader Ginsburg wondered why the Jefferson County school system’s switch from assigning students based on race under a court-supervised desegregation plan to using a voluntary plan suddenly made the idea legally suspect.

“What’s constitutionally required one day gets constitutionally prohibited the next day?” she said to Teddy B. Gordon, the lawyer for a family that challenged the district’s voluntary race-conscious policy. “That’s very odd.”

The Dec. 4 arguments in 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) came as supporters of racial diversity in education rallied outside the Supreme Court building.

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Questions From New Justices

The 97,000-student Jefferson County district, which includes the city of Louisville, formerly was under a court-supervised school desegregation plan. The district adopted a voluntary plan in 2001 after a federal court declared it “unitary” and free of the vestiges of past racial discrimination.

Jefferson County’s “managed choice” plan includes consideration of race for some student assignments to schools. The plan seeks to have a black enrollment of at least 15 percent and no more than 50 percent at each school.

Francis J. Mellen Jr.

In this excerpt, Francis J. Mellen Jr., the lawyer for the Jefferson County, Ky., school district, tries to explain to Justice Anthony M. Kennedy how the district’s race-conscious plan has been accepted in the community.

The 46,000-student Seattle district was never under court-ordered desegregation, but in 2000 adopted an assignment plan that it says uses race as a way to foster educational and social benefits in its classrooms. The plan uses race as one of several tiebreakers for the district’s 10 high schools when certain schools are oversubscribed after 9th graders select their preferred schools.

In both Jefferson County and Seattle, parents of white students challenged the race-conscious plans.

The lawyers for the school districts defended the disputed assignment plans as narrowly tailored efforts to keep their schools racially diverse.

“This case presents a story of a board of education that replaced a desegregation decree with a student-assignment plan that works,” said Francis J. Mellen Jr., the lawyer for the Jefferson County school district.

Chief Justice John G. Roberts Jr. asked Mr. Mellen about then-Justice Sandra Day O’Connor’s statement in Grutter v. Bollinger, the 2003 case that upheld a race-conscious admissions plan at the University of Michigan law school, that she expected such affirmative action policies might no longer be needed in 25 more years.

“I can’t read the future,” Mr. Mellen said. But the Jefferson County school board, by modifying its plan, as it did in 1984, 1994, 1996, and 2000, would be able to tailor it more narrowly as local circumstances allowed, he said.

The chief justice, who joined the court last year, appeared generally skeptical of the districts’ use of race.

Justice Samuel A. Alito Jr.

In this excerpt, Justice Samuel B. Alito Jr. asks Michael F. Madden, the Seattle school district’s lawyer, about two high schools that have heavily black enrollment despite the district’s race-conscious diversity policy.

The court’s newest member, Justice Samuel A. Alito Jr., questioned Mr. Madden about two Seattle high schools that had largely black enrollments, and whether their students were benefiting from the district’s racial-diversity policy.

Both plans came under attack from the Bush administration.

U.S. Solicitor General Paul D. Clement, who took part in arguments on the side of the families in both cases, said that the Seattle district’s plan was based not on “diversity but demo-graphics.”

The district is “clearly working backward from the overall demographics of the school district, rather than working forward to any clearly articulated pedagogical goal,” Mr. Clement said.

Perhaps the strongest defense of the district’s plans came from Justice Stephen G. Breyer, who cited the Supreme Court’s 1971 ruling in Swann v. Charlotte-Mecklenburg Board of Education, which authorized busing for desegregation.

Justice Stephen G. Breyer

In this excerpt, Justice Stephen G. Breyer tells U.S. Solicitor General Paul D. Clement of his concerns that school districts are becoming more racially segregated.

“Thirty-five years ago in Swann, this court said that a school board … ‘could well conclude that to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole,’ ” Justice Breyer said. “Thousands of school districts across the country, we’re told, have relied on that statement in an opinion to try to bring about a degree of integration.”

Mr. Clement, the Bush administration’s lawyer, said that school districts would have been “misguided” to rely on that language after later Supreme Court cases cast doubt on government racial-balancing efforts.

The court is expected to issue decisions in the cases by July.

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