Posted on December 4, 2006

Back To The Supreme Court: Racial Balance In Schools

Warren Richey, Christian Science Monitor, Dec. 4, 2006

America is one of the most racially and ethnically diverse countries in the world. Yet 52 years after Brown v. Board of Education — the landmark Supreme Court decision that struck down segregation — US classrooms are growing increasingly segregated.


Monday, the US Supreme Court takes up two cases that confront the heated debate over race. On one side are those who believe affirmative action and other race-conscious programs are necessary to fight the effects of discrimination and inequality. On the other side are those who believe the Constitution mandates a colorblind approach to race relations — that government programs granting benefits based on a person’s race are just as illegal as withholding benefits because of a person’s skin color.

At issue in the two cases are race-based student enrollment plans at public school districts in Seattle and in Louisville, Ky. Both plans were designed by the local school boards to voluntarily achieve racial integration to provide a diverse learning environment for the benefit of all students. Both plans are under attack by local parents who say the use of race to maintain a racial balance amounts to an unconstitutional form of government discrimination.


“In Brown v. Board of Education the court held that intentionally classifying students on the basis of race violates the equal protection clause, and declared the ultimate objective . . . to be achieving a system of determining admission to the public schools on a nonracial basis,” writes Solicitor General Paul Clement in his brief to the court.

The Supreme Court last considered a similar issue in a 2003 case over race-based admissions procedures at the University of Michigan Law School. The court split 5 to 4, with then-Justice Sandra Day O’Connor casting the deciding vote upholding the affirmative-action plan as a means to bring racial diversity to the elite law school.


The enrollment plans under challenge in Louisville and Seattle are similar in that they are both attempts to address de facto segregation tied in part to housing patterns. The voluntary desegregation programs are aimed at preventing the school districts from sliding into a starkly segregated environment with minority students isolated in inner-city schools and white students isolated in suburban schools.

To achieve a meaningful mix, both school boards decided they would have to use race as a factor in deciding which students should attend particular schools.

In Seattle, the school board set student enrollment at the district’s most popular high schools within 15 percentage points of the overall racial balance of the district’s students. The balance was 40 percent white and 60 percent nonwhite.

Students were permitted to apply to attend any of the district’s 10 high schools. But because some schools were more popular than others, the board created a racial tiebreaker to determine eligibility at the most popular schools.

If a new student would cause that particular school’s white or nonwhite student population to increase above the 55 percent cutoff, the student was barred from attending that school. In the plan’s first year, more than 300 white students were denied admission to their preferred school because of their skin color. Thirty students left the public school system rather than attend their assigned school.

Parents who oppose the plan say Seattle schools are already diverse and that the race tiebreaker is an attempt to achieve unconstitutional racial balancing.

Lawyers for the school board counter that the desire to integrate public schools is not the constitutional equivalent of seeking to maintain a segregated system.

Supporters say the Seattle plan is consistent with the promise made by the high court in Brown v. Board of Education. There is a fundamental difference between using race to segregate students and using it to integrate them, they say.

The same debate is under way in Louisville. There, the Jefferson County School Board established a broad goal that each of the district’s schools should have black student enrollment set between 15 percent and 50 percent of the school’s total enrollment. African-American enrollment districtwide is about 35 percent. It is up to school administrators to determine the exact racial mix at each school.

The program is aimed at encouraging students to attend schools outside their own neighborhood, but flexibility is the key to the Jefferson County plan. It seeks to offer options for those parents who want their children to attend school close to home, yet it also seeks to achieve meaningful diversity in every school throughout the district.


Not all schools in the Jefferson County system use race as a deciding factor. A federal judge has ordered that four schools offering unique educational programs cannot use race in selecting students — including Louisville’s historically black Central High School. Since the judge’s ruling six years ago in a case brought by African-American students, black enrollment at Central has risen steadily and now stands at 83 percent.

In addition, districtwide “traditional” schools use a random computer-drawn list to decide who attends those schools.

Todd says she and her staff work to ensure that the proportion of black applicants to white applicants at traditional schools reflects the districtwide goal for black enrollment. That is done in the hope that the random draw will subsequently reflect the desired black-white mix, Todd says.

A similar random draw would not work at the elementary school level, Todd says. It would eliminate the flexibility to allow dissatisfied parents to choose a second, or third, or fourth school option. It is that follow-up effort that helps blunt the impact of being denied admission to a first-choice school because of a student’s race.

Todd says although the district uses some race-neutral alternatives, meaningful integration requires using race. “I don’t think we can keep our school desegregated over time without the yardstick and vision of some racial guidelines,” she says.

Others disagree. The school district’s approach “denigrates a 5-year-old’s self-worth and self-esteem by comporting him to be color coded throughout his educational career,” says Teddy Gordon, who represents Crystal Meredith, a mother who is challenging the Louisville plan.


The school district’s lawyer, Francis Mellen, says that since all schools in Louisville receive similar funding and offer similar programs, students are not deprived of a benefit when they are denied enrollment in their chosen school.


Decisions in the two cases — Parents Involved in Community Schools v. Seattle School District No. 1 and Crystal Meredith v. Jefferson County Board of Education — are expected by the end of the court’s term next summer.

A divided U.S. Supreme Court signaled it probably will bar school districts from trying to integrate their classrooms by using race to assign students to schools.

Hearing arguments in Washington, the justices today aimed a torrent of questions at lawyers defending integration plans in Seattle and Louisville, Kentucky. Both programs limit the ability of parents to choose schools by imposing numerical ranges for racial composition.

Justice Anthony Kennedy, who looms as the reconstituted court’s swing vote on race questions, suggested the school districts were violating the Constitution’s equal protection clause. He joined Chief Justice John Roberts, Justice Samuel Alito and Justice Antonin Scalia in criticizing the plans.

“You’re characterizing each student by reason of the color of his or her skin,” Kennedy said to the lawyer defending the Seattle plan. “It seems to me that should only be, if ever allowed, allowed as a last resort.”


The justices heard arguments as hundreds of advocates for school desegregation held a rally on the sidewalk in front of the court building, waving signs and chanting slogans.

‘Terrible Problem’

Inside the courtroom, Justice Stephen Breyer was one of four justices who defended the plans, saying they addressed what he called a “terrible problem.”

“The problem is that there are lots and lots of school districts that are becoming more segregated in fact,” he said.

Justices David Souter, Ruth Bader Ginsburg and John Paul Stevens also signaled they likely will vote to uphold the plans. Justice Clarence Thomas, perhaps the court’s most ardent critic of affirmative action, was the only justice who didn’t ask questions.

Solicitor General Paul Clement, the Bush administration’s top courtroom lawyer, told the justices that school boards could pursue integration through other steps, such as creating magnet schools and reallocating resources.


Clumsy Means

Souter questioned the logic of letting school boards pursue race-conscious goals only if they use race-neutral methods.


Several of his colleagues, however, said they saw a significant difference. Kennedy repeatedly asked whether districts could consider the racial impact when deciding where to build a new school.

He eventually answered his own question, suggesting that racial considerations in what he called “strategic siting” decisions were both permissible and fundamentally different from assignment decisions based on an individual student’s race.

Roberts said that “the purpose of the equal protection clause is to ensure that people are treated as individuals rather than based on the color of their skin.”

Seattle Plan

Seattle’s “open-choice” assignment plan lets students choose their preferred high school. For those schools where requests exceed space, officials give first priority to siblings of current students and then in some cases consider race.

The most recent rules call for race to serve as a tiebreaker in schools that are more than 65 percent white or 75 percent minority. Because of the litigation, the school district hasn’t used race in assigning students since 2002.


Alito Skepticism

Alito questioned whether the plan achieved its stated goal, pointing to two south Seattle high schools that remained predominantly black even with the racial tiebreaker.


Harry Korrell, a lawyer for white families challenge the program, argued that the equal protection guarantee requires government agencies to “treat people as individuals, not simply as members of a racial class.”

The Kentucky case involves elementary and middle schools, as well as high schools. The Jefferson County school district has a “managed choice” system that considers parent preferences while requiring that each school have from 15 percent to 50 percent black students.

One potential distinction between the two cases is that until 2000 the Kentucky district was acting under a court desegregation order, designed to rectify decades of state- sponsored discrimination.