The Bush administration last week urged the U.S. Supreme Court to strike down plans that use race to help determine where to assign students to public schools.
The administration argues in legal briefs filed in two potentially landmark cases that the voluntary use of race to foster diversity in student populations violates the 14th Amendment’s guarantee of equal protection of the law.
“School districts have an unquestioned interest in reducing minority isolation through race-neutral means. But the solution to addressing racial imbalance in communities or student bodies is not to adopt race-conscious measures,” says the brief filed by U.S. Solicitor General Paul D. Clement in a case involving the Seattle district’s race-conscious plan.
The Seattle case, along with one from Jefferson County, Ky., will be argued in the Supreme Court term that begins Oct. 3.
The 97,000-student Jefferson County district, which includes Louisville, adopted a voluntary plan in 2001 after a federal court declared it “unitary,” or free of the vestiges of past racial discrimination. The district’s “managed choice” plan seeks to have a black enrollment of at least 15 percent and no more than 50 percent at each school.
The 46,000-student Seattle district was never under court-ordered desegregation. It adopted an assignment plan in 2000 that considers race as one of several tie-breakers for its 10 high schools when a school is oversubscribed after 9th graders select their preferred schools.
In both Jefferson County and Seattle, parents of white students challenged the race-conscious plans.
Federal appeals courts in Cincinnati and San Francisco have upheld, respectively, the Jefferson County and Seattle plans, although the Seattle plan was suspended pending the outcome of the case.
The justices accepted both cases—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)—for review last spring and will likely decide them by next summer. (“High Court to Consider Use of Race,” June 14, 2006.)
Parallel Arguments
In its friend-of-the-court briefs filed Aug. 21, the Bush administration uses nearly identical arguments to contend that neither of the plans is “narrowly tailored,” nor furthers “a compelling government interest.” Those are requirements for constitutionality that the high court has established for all government classifications based on race.
The briefs say the plans are indistinguishable from a racial quota, and the school districts failed to give serious consideration to any of various race-neutral alternatives to eliminate or reduce minority isolation.
Both plans are “devoid of the type of holistic, individualized consideration” that the court found critical for upholding race-conscious admissions in a landmark 2003 decision involving the University of Michigan, the administration argues.
Some legal observers believe that the Supreme Court might be poised to restrict the use of race in public education just a few years after the justices narrowly re-endorsed the principle of affirmative action in college admissions in the Michigan cases.
The Bush administration’s briefs stop short of calling for the justices to overrule the key principle from the Michigan cases that permitted race-conscious admissions decisions, as long as certain conditions were met.
Still, the solicitor general’s briefs met with immediate criticism from legal experts at several education organizations.
The administration’s position is “not a view that understands the realities faced by modern school districts,” said Francisco M. Negrón Jr., the general counsel of the National School Boards Association, in Alexandria, Va.
The federal position, he added, recognizes the existence of racial isolation and the ability of school districts to address it, but would deny them the use of race, which he called “the single greatest tool that’s available to school districts in addressing racial isolation.”
