Law & Courts

K-12 Groups Back Racial Diversity as Supreme Court Schedules Affirmative Action Arguments

By Mark Walsh — August 03, 2022 5 min read
In this June 8, 2021 photo, with dark clouds overhead, the Supreme Court is seen in Washington.
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In a pair of U.S. Supreme Court cases about college admissions, several K-12 groups this week filed briefs supporting the consideration of race in elementary and secondary education contexts as well, with one arguing that a ruling against affirmative action would only increase efforts to limit books about and discussions of race in the K-12 classrooms.

The briefs are part of the last major batch of filings in two major cases the high court will hear this fall on the use of race in admissions. On Wednesday, the court set Oct. 31 as the argument date for Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199) and Students for Fair Admissions v. University of North Carolina (No. 21-707).

Harvard and the University of North Carolina are defending their lower-court victories in challenges brought by the Students for Fair Admissions, a national group led by Edward Blum, a legal strategist who was behind a challenge to affirmative action at the University of Texas at Austin. (The Supreme Court upheld UT’s admissions policy in 2016.) SFFA argues that race-conscious admissions policies discriminate against Asian-American applicants.

Among those supporting Harvard and UNC in briefs filed this week are numerous other colleges, higher-education groups, major U.S. corporations including Apple Inc., Meta Platforms Inc. (corporate parent of Facebook), and Microsoft Inc., dozens of scholars, and President Joe Biden’s administration.

And then there are the K-12 groups, who address the need for racial diversity in education generally as well as certain specific ways school districts take race into account, including admissions to selective schools.

A brief filed by the National Education Association is among the more provocative of those by K-12 groups. It notes that since the Supreme Court last considered affirmative action in higher education in 2016, “our national conversation on race has shifted significantly.”

The brief cites the 2017 march by white supremacists in Charlottesville, Va., the 2020 reckoning on race in response to the death of George Floyd in Minneapolis police custody, and the COVID-19 pandemic’s exposure of racial inequities in health care and education.

“Today, the reality remains that race still carries great weight in our society and continues to carve out lanes of opportunity and of peril based solely on the color of one’s skin,” says the NEA brief, which was joined by the Service Employees International Union.

Although the cases before the court are specifically about college admissions, the NEA uses its brief to discuss recent controversies over teaching about race in the classroom

The brief points to “recent efforts by state legislatures nationwide to censor classroom discussions and limit educator training on issues of systemic racism.”

“Rather than exposing the root causes of racial inequality in schools and equipping our educators and our students to face systemic issues, they promote a whitewashed version of our history and ignore that history’s lasting impact,” the brief says. “The mission of public elementary, secondary, and higher education cannot be fulfilled without affirmative efforts to achieve racially diverse classrooms.”

A group supporting the challenge to affirmative action also addressed race discussions in the classroom in a brief filed in the Supreme Court cases last spring.

Parents Defending Freedom, which has recently raised its profile by supporting challenges to certain books and to what some conservative groups assert is the teaching of “critical race theory” in K-12 schools, argues that the Supreme Court’s main operative precedent permitting race consideration in admissions, 2003’s Grutter v. Bollinger, “infects K-12 classrooms with racial division.”

“From segregated classrooms and extracurricular activities to forced self-identification as oppressors based on race, K-12 schools today are infected by Grutter’s pernicious racial view,” the PDE brief says.

(The briefs of PDE and other opponents of affirmative action and race-conscious school policies were filed in May. The briefs in support of Harvard and UNC were due on Monday.)

Other K-12 groups argue for the importance of racial diversity in the classroom

Among the other K-12 groups supporting affirmative action was the Council of the Great City Schools, representing 76 of the nation’s largest urban school districts. It told the high court that racial segregation in K-12 schools has increased in the last two decades despite efforts to promote racial diversity.

“Diversity is also a compelling interest in elementary and secondary schools,” the council’s brief in support of Harvard and UNC says. “The growing de facto segregation and persistent educational inequity in our nation’s public schools make race-neutral and narrowly tailored race-conscious efforts at the elementary and secondary level more critical than ever.”

A joint brief by the National School Boards Association, American Association of School Administrators, National Association of Elementary School Principals, and American School Counselors Association, and AASA, the School Superintendents Association, argues that K-12 schools generally do not take individual consideration of a student’s race as often as selective colleges do, but do rely on the Supreme Court’s precedents that there is a compelling interest in racial diversity in schools.

“When schools are able to achieve diversity—including but not limited to racial and ethnic diversity—benefits flow to all students,” the groups’ brief says.

Those administrator groups also urge the court not to use the Harvard and UNC cases to reconsider Parents Involved in Community Schools v. Seattle School District, the 2007 decision that struck down two voluntary desegregation plans but left school districts a little room to take race into account to promote diversity.

The American Federation of Teachers argues in a brief that access to quality higher education is important for students of color.

“Higher education remains a gateway to many of the most rewarding and important professions. Any young person who dreams of being a K-12 teacher, a member of the academe, an architect or an engineer, a doctor or a nurse, an attorney or a judge or a Supreme Court police officer, must first pursue and succeed in higher education,” says the brief, which was signed by the union’s president, Randi Weingarten.

The court announced that both the Harvard and UNC cases will be argued on Oct. 31.

The court announced last month that it would hear separate arguments for the Harvard and UNC cases, which will allow new Justice Ketanji Brown Jackson to participate in the UNC case. Jackson, who was a member of the Harvard Board of Overseers until earlier this year, had announced at her confirmation hearing last spring that she would recuse herself from the Harvard case.

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