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Use of Race Uncertain for Schools

By Mark Walsh — July 12, 2007 7 min read
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The U.S. Supreme Court’s decision sharply limiting the use of race in assigning students to schools has led many educators to recommit themselves to strive for racial diversity in K-12 education, but has left them speculating about which tactics will withstand legal challenges.

“Like most school districts, we’re still rereading and trying to better understand what the Supreme Court is saying,” Miguel Marquez, the general counsel of the San Francisco school district, said last week. “A consensus is developing that clearly they have not closed the door to race. But the question is, how open is the door?”

Goodwin Liu, a law professor at the University of California, Berkeley, said the door was open just enough for districts with the political will to do so to continue to attempt race-conscious efforts to maintain diversity.

“It’s going to be worked out on a district-by-district basis,” said Mr. Liu, who is the co-director of the Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity at Berkeley’s law school. “Districts that are very committed to integration will continue to try to achieve it. It is fundamentally an issue of political will.”

To Michael D. Casserly, the executive director of the Council of the Great City Schools, such prospects appear slim.

“The court left us with some, but very limited, practical options to use race to desegregate the schools,” said Mr. Casserly, whose Washington-based group represents large urban districts, many of which have programs that consider students’ race. “For all intents and purposes, the court said you can use race, but we dare you to come up with a solution that passes muster.”

“For that reason,” Mr. Casserly added, “I worry that a lot of school districts will simply give up in the face of repeated challenges.”

Two Districts’ Plans

The court ruled 5-4 on June 28 that assignment plans in the Seattle and Jefferson County, Ky., districts that classified all students by race, and sometimes relied on race to achieve diversity in individual schools, violated the equal-protection clause of the 14th Amendment.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John G. Roberts Jr. wrote in the main opinion in Parents Involved in Community Schools v. Seattle School District (Case No. 05-908) and Meredith v. Jefferson County Board of Education (No. 05-915).

The chief justice’s opinion was joined in full by Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.

Justice Anthony M. Kennedy, who joined only parts of the majority opinion, made clear that he would not go as far as the chief justice in prohibiting schools from using race.

In a lengthy concurrence that has been heavily scrutinized in legal and education circles, Justice Kennedy said that while the Seattle and Jefferson County districts used race in an unconstitutional manner, it would be permissible for districts to take race into account when choosing sites for new schools, when drawing attendance zones based on neighborhood demographics, in allocating resources for special programs, in recruiting students and faculty members “in a targeted fashion,” and in tracking enrollment and performance by race.

“A district may consider it a compelling interest to achieve a diverse student population,” Justice Kennedy said. “Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered.”

Justice Stephen G. Breyer issued a passionate dissent, which was joined by Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg.

“To invalidate the plans under review is to threaten the promise of Brown [v. Board of Education of Topeka],” Justice Breyer said in a reference to the court’s 1954 ruling that struck down racial segregation in public schools. “This is a decision that the court and the nation will come to regret.”

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

Jefferson County’s “managed choice” plan sought to maintain a black enrollment of at least 15 percent, but no more than 50 percent, at each school. (“Target Demographics,” Oct. 4, 2006.)

The district’s race-conscious plan was challenged by a white parent whose son was denied a transfer to his neighborhood school in 2000 because of his race.

The 46,000-student Seattle district was never under court-ordered desegregation, but in 2000 adopted an assignment plan that called for using race as one of several tiebreakers for the district’s 10 high schools when certain schools were oversubscribed after 9th graders had selected their preferred schools. (“Race Plans Get Rough Reception,” Dec. 13, 2006.)

Several white families whose children were denied admission to a new neighborhood high school challenged the Seattle policy in 2000. The white families were later joined in the lawsuit by black families whose children were denied assignment to traditionally black-majority high schools.

Both plans were upheld by lower federal courts.

‘Wishful Thinking’

Less than a week after the Supreme Court ruled, another school district’s prominent racial-diversity plan was under fresh legal attack.

The 15,000-student Lynn, Mass., district takes race into account in considering students’ requests to transfer out of their neighborhood schools. The voluntary plan seeks to prevent any school from becoming racially imbalanced. The U.S. Court of Appeals for the 1st Circuit, in Boston, upheld the plan in 2005, and the Supreme Court declined to review that decision just months before it agreed to hear the challenges to the Seattle and Jefferson County plans.

On July 3, lawyers for white parents who had challenged Lynn’s plan went back to federal district court in Boston asking a judge to invalidate the plan in light of the new Supreme Court decision.

Michael Williams, a Boston lawyer who has helped represent the white Lynn parents, said he agreed that Justice Kennedy’s concurrence leaves open the possibility for some consideration of race.

“Some districts are digging in their heels and trying to fit their policies into Kennedy’s concurrence,” Mr. Williams said. “That’s a little bit of wishful thinking.”

“Any school system that has adopted a school choice plan where the deciding factor on where an individual child goes to school is based on race is going to be in trouble here,” he added.

John R. Munich, a St. Louis lawyer with expertise in desegregation efforts, said he believes that the court’s ruling sends a message to educators that the era for considering race is at an end.

“As a practical matter, it is going to be virtually impossible to prove to the Supreme Court that a race-based student-assignment plan passes constitutional muster,” said Mr. Munich, who had filed a friend-of-the-court brief against the Seattle and Jefferson County districts. He also had won a victory in the high court in 1995 in an effort to curtail a federal judge’s expensive state-funded desegregation remedy for the Kansas City, Mo., district.

“For school districts, the best answer is don’t use race as a factor” at all in assigning students, Mr. Munich said.

But other legal experts said that conclusion was not supported by the totality of the justices’ 185 pages of opinion in the case.

“Five justices of the Supreme Court still believe that there is a compelling governmental interest in considering race,” Mr. Liu of Berkeley law school said, referring to Justice Kennedy’s concurrence in combination with the four dissenters’ broader willingness to allow race-conscious plans.

Maree F. Sneed, a veteran education lawyer with the Washington-based firm Hogan & Hartson, which represents school districts nationwide, said she attended a seminar for K-12 educators at Harvard University last week in which the Supreme Court decision was one topic.

She said she was concerned about a perception among many at the session that the ruling had completely barred schools from taking students’ race into account.

“I said, ‘How many of you think you can’t use race as a factor?’ and almost everybody raised their hands,” she said. “I said, ‘You must not have read the opinion.’ ”

But both at the Harvard session and in calls from school policymakers in the weeks since the race decision came down, Ms. Sneed said she was hearing a commitment to do whatever could pass legal muster to keep schools racially diverse.

“What I hear from school districts is there is still a real interest and concern that they need to grapple with these issues,” Ms. Sneed said. “There is still an interest in diversity and avoiding the harms of racial isolation.”

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A version of this article appeared in the July 18, 2007 edition of Education Week as Use of Race Uncertain for Schools

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