Court Limits Use Of Race To Achieve Diversity In Schools

Robert Barnes, Washington Post, June 28, 2007

A splintered Supreme Court today threw out school desegregation plans from Seattle and Louisville, but without a majority holding that race can never be considered as school districts try to ensure racially diverse populations.

Chief Justice John G. Roberts Jr. authored the most important opinion of his two terms leading the court. He held that both plans, which categorize students on the basis of race and use that in making school assignments, violate the constitution’s promise of equal protection, even if the goal is integration of the schools.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote.

He was joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. But Justice Anthony M. Kennedy, who agreed with the four in striking down the desegregation plans, would not go as far as Roberts in ruling out racial considerations.

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The court’s four liberals delivered a scathing dissent—twice as long as Roberts’s opinion. It said the plurality’s decision was, in the words of Justice Stephen G. Breyer, who read his opposition from the bench, a “cruel distortion” of the court’s landmark decision more than 50 years ago in Brown v. Board of Education, which demanded an end to segregated schools.

“This is a decision that the court and the nation will come to regret,” Breyer said.

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“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin,” Roberts wrote. “The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

Where Brown was brought by black students who were denied entrance to white schools, the cases at issue today were brought by white parents whose children were denied their first choice of schools. More than 50 organizations weighed in with supporting briefs, mostly on the side of the school boards.

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In the cases decided today—Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education—both systems offered parents and students a choice of schools, partly to achieve a level of integration that would not otherwise be possible because of racially segregated housing patterns.

Both set goals for white and minority representation at schools and, along with other factors, made decisions about school assignments based on a student’s race. The previous time Seattle used the system—it has stopped because of the litigation—about 100 minority students and 200 white students did not get their first choice.

The Louisville-Jefferson County plan was implemented after the school system emerged from a 25-year desegregation plan overseen by the federal courts. The goal was to maintain the racial integration it had achieved.

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The Supreme Court today declared unconstitutional the use of racial guidelines to integrate public schools, saying that neither white nor black children should be turned away from a school in pursuit of a “desired racial balance.”

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A pair of rulings struck down voluntary integration policies adopted by school boards in Seattle and Louisville, Ky., because some students were excluded based on race. Roberts said the court’s decision was faithful to the Constitution’s “equal protection” clause because it required officials to treat all people the same without regard to race.

The decision casts doubt on integration guidelines that have been adopted by school districts around the country. Though mandatory busing programs have been abandoned as a way to desegregate, many districts have adopted guidelines in some schools, including magnet programs, that limit the percentage of black or white students who may attend.

Parents in Seattle and Louisville challenged the guidelines because a son or daughter had been turned away from the school nearest their home. They lost in the lower courts but won today.

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“This is a decision that the court and the nation will come to regret,” Justice Stephen G. Breyer said in an impassioned dissent he read in the courtroom. “The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown.”

Breyer said the majority was wrong to treat integration and segregation as if they were the same simply because race plays a role in the assigning of students.

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School officials cannot “ignore the problem of de facto re-segregation in schooling,” [Justice] Kennedy said, and they may “devise race-conscious measures to address the problem in a general way.”

One option would be to locate new schools in areas that are between black and white neighborhoods and thereby draw a diverse group of students. Another approach might be to have voluntary transfer policies that allow students to move from segregated to more integrated schools. Such programs were used in Los Angeles and other cities when mandatory busing programs were ended.

In delivering his opinion, the chief justice said the court was not reconsidering its recent rulings that have upheld affirmative action in colleges and universities. Roberts noted the importance of diversity in “the unique context of higher education,” and he quoted approvingly from the ruling four years ago that allowed colleges to give special consideration to minority students based on an individual assessment of their records.

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