Law & Courts

High Court Won’t Hear Race Appeal

By Andrew Trotter — December 13, 2005 5 min read
  • Save to favorites
  • Print

The U.S. Supreme Court declined an opportunity last week to rule on the constitutionality of a school district’s policy of weighing race as a factor in assigning students to schools. It has sidestepped a potentially thorny sequel to its 2003 rulings on affirmative action in higher education and left several lower-court rulings as the best available road map for districts that want to promote racial diversity with minimal legal risks.

The court on Dec. 5 refused to hear an appeal in Comfort v. Lynn School Committee (Case No. 05-348), a lawsuit involving a challenge by parents to a Massachusetts school district’s voluntary integration program. It was the first of several chances the justices may have in their 2005-06 term to examine districts’ voluntary consideration of race.

See Also

See related story,

Considering Race

Although it is not clear how many districts have adopted voluntary integration plans, some are in districts that have been released from court-ordered desegregation plans and have since adopted voluntary plans. In September, the U.S. Department of Justice reported that 328 districts nationwide were operating under court-supervised desegregation plans to which the U.S. government is a party.

Some districts that have adopted voluntary plans, including Lynn, have never had court-supervised desegregation plans.

Two other cases likely to be appealed to the Supreme Court involve voluntary student-assignment plans in the Jefferson County, Ky., school district, which was once under a court-ordered desegregation plan, and the Seattle school system, which for 21 years had a voluntary busing plan to desegregate its schools, phasing it out by 1999.

As is customary, the Supreme Court gave no reason for its unanimous denial of the Massachusetts appeal, and its action was not a ruling on the legal merits of the Lynn district’s plan. The justices let stand a 3-2 decision from July by the full U.S. Court of Appeals for the 1st Circuit, in Boston, that upheld the district’s plan.

Still, supporters of the district’s plan viewed the court’s refusal to review the case as a positive development. “I think school districts should feel increasingly comfortable with their ability and authority to consider race for purposes of promoting integration,” said Chinh Quang Le, an assistant counsel for the NAACP Legal Defense and Educational Fund Inc. in New York City. The civil rights organization filed a friend-of-the-court brief in the case at the appeals court level on the side of the Lynn district.

Three federal appeals courts have considered voluntary race-based school district programs in light of two important Supreme Court decisions from 2003 that dealt with consideration of race in higher education admissions.

In Grutter v. Bollinger, the high court broadly reiterated its approval of affirmative action in education under the proper circumstances and upheld an admissions policy at the University of Michigan law school that took race into account. In Gratz v. Bollinger, the court struck down Michigan’s undergraduate admissions policy because it automatically gave bonus points to members of certain underrepresented minority groups.

‘Narrowly Tailored’

The appellate courts in the three legal tests applied both decisions on university admissions plans, though chiefly Grutter, to public K-12 schools.

In the case involving the 15,000-student Lynn district, the 1st Circuit court concluded that the Michigan law school’s goal of reaping what the court called “critical” educational benefits from racial diversity in its admissions was similar to the school district’s goal of seeking “educational benefits that flow from a racially diverse student body in each of Lynn’s public schools and avoiding the negative educational consequences that accompany racial isolation.”

In the majority opinion, U.S. Circuit Judge Kermit V. Lipez said of the Lynn plan, “by reducing racial isolation and increasing intergroup contact, it has ameliorated racial and ethnic tension and bred interracial tolerance.”

Those benefits, he said, allowed the court to overlook the fact that race ultimately was “a decisive factor” in the assignment plan.

But in his dissent, Judge Bruce M. Selya said that in Grutter and Gratz, “the [Supreme] Court made it crystal clear that a race-conscious admissions program must use race in a flexible, non-mechanical way if it is to be considered narrowly tailored.”

A Colorblind System?

In the Kentucky case, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously upheld the district’s assignment plan. The court relied on the analysis of a federal judge in Louisville, Ky., who had upheld the 95,000-student school district’s plan in 2004 because it did not unduly harm members of any racial group.

U.S. District Judge John G. Heyburn II said that the district’s plan was using race in a limited way to achieve benefits for all students through its integrated schools.

In the Seattle case, the full U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled 7-4 on Oct. 20 that the 46,000-student district’s use of race as a tiebreaker when deciding which students to admit to high schools was narrowly tailored to meet the school district’s compelling interests.

In the majority opinion, U.S. Circuit Judge Raymond C. Fisher said that the school district had “made a good faith effort” to consider race-neutral alternatives to achieve desegregated schools, before choosing the assignment plan that includes a race-based tiebreaker. He noted that the district over many years had tried alternatives, including magnet and other special interest programs, and race-conscious districting.

“But when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution,” Judge Fisher wrote. The Seattle and Jefferson County decisions are both expected to be appealed to the Supreme Court later this term.

Sharon L. Browne, a lawyer with the Pacific Legal Foundation in Sacramento, Calif., which filed a brief in support of the Lynn parents’ case in the 1st Circuit, said that the three appellate decisions support “a trend, and I think it is a very sad trend,” toward using race in student assignment. She said that by allowing districts to consider race in assigning students, “we are teaching our children in public education that race matters, unless we [are to] have a colorblind education system.”

Thomas Hutton, a lawyer with the National School Boards Association, said that it is unlikely that the winning streak in the federal appeals courts for voluntary integration plans would stretch to all the appellate circuits.

“In one of these cases, we may get to point where an appellate court somewhere disagrees,” he said. “When that happens, it becomes [more likely that] the Supreme Court weighs in to resolve the split in the circuits.”

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Artificial Intelligence Webinar
Managing AI in Schools: Practical Strategies for Districts
How should districts govern AI in schools? Learn practical strategies for policies, safety, transparency, and responsible adoption.
Content provided by Lightspeed Systems
Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and K-12 education jubs at the EdWeek Top School Jobs virtual career fair.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Absenteeism Webinar
Turning Attendance Data Into Family Action
This California district cut chronic absenteeism in half. Learn how they used insight and early action to reach families and change outcomes.
Content provided by SchoolStatus

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Supreme Court Strikes Trump Tariffs in Case Brought by Educational Toy Companies
Two educational toy companies were among the leading challengers to the president's tariff policies
3 min read
Members of the Supreme Court sit for a new group portrait following the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington, Oct. 7, 2022. Bottom row, from left, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan. Top row, from left, Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh, and Associate Justice Ketanji Brown Jackson.
Members of the U.S. Supreme Court sit for a new group portrait following the addition of Justice Ketanji Brown Jackson, at the court building in Washington, Oct. 7, 2022. On Feb. 20, 2026, the court ruled 6-3 to strike down President Donald Trump's broad tariff policies, ruling that they were not authorized by the federal statute that he cited for them.
J. Scott Applewhite/AP
Law & Courts California Sues Ed. Dept. in Clash Over Gender Disclosures to Parents
California challenges U.S. Department of Education findings on state policies over gender disclosure.
4 min read
California Attorney General Rob Bonta speaks to reporters as Arizona Attorney General Kris Mayes, left, and Oregon Attorney General Dan Rayfield, right, listen outside the Supreme Court on Wednesday, Nov. 5, 2025, in Washington. (AP Photo/Mark Schiefelbein)
California Attorney General Rob Bonta speaks to reporters outside the U.S. Supreme Court in Washington on Nov. 5, 2025, with Arizona Attorney General Kris Mayes and Oregon Attorney General Dan Rayfield behind him. Bonta this week sued the U.S. Department of Education, asking a court to block the agency's finding that the state is violating FERPA by <ins data-user-label="Matt Stone" data-time="02/13/2026 4:22:45 PM" data-user-id="00000185-c5a3-d6ff-a38d-d7a32f6d0001" data-target-id="">not requiring schools to disclose</ins> students’ gender transitions <ins data-user-label="Matt Stone" data-time="02/13/2026 4:22:45 PM" data-user-id="00000185-c5a3-d6ff-a38d-d7a32f6d0001" data-target-id="">to</ins> parents.
Mark Schiefelbein/AP
Law & Courts Oklahoma Board Rejects Jewish Charter as Supreme Court Fight Looms
Oklahoma's charter school board rejected the Jewish school as members said their hands were tied.
4 min read
Ben Gamla Charter Schools founder and former U.S. Rep. Peter Deutsch, right, speaks with Brett Farley, executive director of the Catholic Conference of Oklahoma, left, before a Jan. 12 meeting of the Statewide Charter School Board in Oklahoma City. Both are founding board members of an Oklahoma Jewish Charter School.
Ben Gamla Charter Schools founder and former U.S. Rep. Peter Deutsch, right, speaks with Brett Farley, executive director of the Catholic Conference of Oklahoma, before a Jan. 12, 2026, meeting of the Statewide Charter School Board in Oklahoma City. The board rejected the proposed Jewish charter school on Feb. 9, 2026.
Nuria Martinez-Keel/Oklahoma Voice
Law & Courts Religious Charter Schools Push New Cases Toward Supreme Court
Advocates seeking to establish publicly funded religious schools in three states.
9 min read
The U.S. Supreme Court is seen, Wednesday, Jan. 14, 2026, in Washington.
The U.S. Supreme Court is seen on Wednesday, Jan. 14, 2026, in Washington. Religious charter advocates are betting a full Supreme Court will side with their efforts to establish religious charter schools.
Rahmat Gul/AP