Supreme Court rejects school racial diversity plans

Public school districts may not use race as the deciding factor in assigning students to schools.

While the race of a student can be one of many characteristics taken into consideration to achieve diversity in the student body, it may not become the predominant criterion that determines which students are admitted to the most popular schools in a district.

In a major 5-to-4 decision announced Thursday, the US Supreme Court struck down race-based public school enrollment plans in Seattle and Louisville, Ky., that were designed to maintain racially integrated student populations. The majority justices said the plans were unconstitutional because they relied too heavily on race in violation of the mandate that all Americans be treated equally regardless of skin color or ethnicity.

"What do the racial classifications at issue here do, if not accord differential treatment on the basis of race?" asks Chief Justice John Roberts in his majority opinion.

In announcing the ruling, Chief Justice Roberts gave public-school administrators throughout the nation perhaps their toughest assignment yet: Find a way to remain faithful to the promise of racially integrated schools under the landmark 1954 decision, Brown v. Board of Education, but do it without paying inordinate attention to the racial or ethnic background of the students.

The decision in two consolidated cases is likely to spark legal challenges to many affirmative-action plans and other proactive race-conscious measures aimed at reaching out to African-Americans and other minorities.

The ruling brought immediate and heated reaction.

"We're very outraged by it, and we'll fight it, as we say, by any means necessary," says George Washington, a lawyer with the Coalition to Defend Affirmative Action in Detroit. "It's an attempt to end racial progress in this country. It's an attempt to freeze de facto segregation as it now exists in this country."

Others praised the opinion. "School boards will look at this decision and see that Seattle and Louisville failed," says Roger Clegg, president of the Center for Equal Opportunity in Falls Church, Va. "That, plus the fact that I think racial and ethnic preferences are increasingly unpopular with students and parents of all races will persuade most schools not to engage in this kind of discrimination."

The 41-page decision backs away from some of the constitutional ground staked out four years ago in June 2003, when then-Justice Sandra Day O'Connor cast the deciding vote in a 5-to-4 decision upholding the use of race to achieve student diversity at the prestigious University of Michigan Law School.

Justice Anthony Kennedy wrote a dissent in that case accusing the majority justices in the Michigan Law School decision of abandoning the high constitutional bar that had traditionally been applied by the court to the use of race in the context of university admissions. Thursday's decision beefs up that constitutional scrutiny, but Justice Kennedy declined to join the court's four conservatives in adopting a colorblind approach in matters of school enrollment. Such an approach would have potentially closed the door on all race-based plans.

School officials have a compelling interest in avoiding racial isolation and in achieving a diverse student population, Kennedy writes in a concurring opinion. "Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered," he says.

As in the high court's April 18 abortion decision, the shift in its race-based enrollment jurisprudence can be linked to Justice O'Connor's retirement from the court and her replacement by a more conservative justice, Samuel Alito.

Both sides of the sharply divided court attempted to wrap their arguments in references to Brown v. Board of Education.

In his majority opinion, the chief justice quoted from a second Brown decision in 1955 as requiring government officials "to achieve a system of determining admission to the public schools on a nonracial basis."

"What do racial classifications do in these cases, if not determine admissions to a public school on a racial basis?" Roberts asks.

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin," he writes. "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."

In a 68-page dissent, Justice Stephen Breyer said that to invalidate the Seattle and Louisville enrollment plans "is to threaten the promise of Brown."

"What was the hope and promise of Brown?" Justice Breyer asks. "It was the promise of true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the nation's cities and schools."

Breyer warns that the majority's position will undercut the larger significance of Brown. "This is a decision that the court and the nation will come to regret," he writes.

Both of the challenged enrollment plans in Louisville and Seattle attempted to address de facto segregation tied in part to housing patterns. The voluntary desegregation programs were 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, school boards in Louisville and Seattle decided that they would sometimes have to use race as a factor to determine which students could attend the most popular schools.

In Seattle, the school board set enrollment at the district's most desired 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 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 to attend 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.

Opponents of the plan said Seattle schools were already diverse and that the race tiebreaker was a form of unconstitutional racial balancing.

Lawyers for the school board argued that integration efforts are not the same as racial discrimination. There is a fundamental difference between using race to segregate students and using it to integrate them, they said.

In Louisville, 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. School administrators set the exact racial mix at each school.

The program tries to encourage students to attend schools outside their neighborhood to help achieve meaningful diversity in every school in the district. School officials urge parents to be flexible in considering an array of second- and third-choice schools to avoid disappointment over being denied admission to a single favored school for racial reasons.

Parents opposed to the plan say it denies a government benefit based on skin color. Supporters say all schools in the district are essentially the same in offering a public education, so being admitted to one school instead of another does not amount to a benefit.

The two cases decided Thursday are Parents Involved in Community Schools v. Seattle School District No. 1 (05-908) and Crystal Meredith v. Jefferson County Board of Education (05-915). Complete decisions and dissents are available on the Supreme Court's website at www.supremecourtus.gov/index.html.

Linda Feldmann contributed to this report.