Nine Will Decide Role of Race in Public School Decisions

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The New York Sun

WASHINGTON – The Supreme Court will consider whether public school districts can look at race in assigning children to schools, agreeing to review desegregation of elementary and secondary students for the first time in more than a decade.

The justices said yesterday that they will hear arguments from a parent group that opposes methods used by the Seattle School District to limit racial imbalances in its 10 high schools. They also will hear a similar challenge by a mother in the Kentucky school district that includes Louisville.

The cases will be the first test for Chief Justice Roberts and Justice Alito on the issue of government efforts to foster racial diversity.


“There are broad principles that are potentially at stake depending on how the court rules,” the president of the NAACP Legal Defense and Educational Fund in New York, Theodore Shaw, said. He called the challenges “part of this overall continuing ideological attack aimed at any program that is aimed at doing something to ameliorate racial inequality.”

The Supreme Court in 2003 said university admissions offices may consider the race of applicants as a means of fostering diversity, so long as each application is given individual consideration. The latest cases test how those principles apply at lower levels, a question that has sparked litigation around the country.

The court’s most recent ruling on desegregation of elementary and secondary schools was in 1995, when the justices limited judges’ authority to order measures, such as teacher pay increases, to overcome the effects of past segregation. Opponents say the use of race in assigning students to schools violates the constitutional guarantee of equal protection.


“The message that the school district is sending to our children is that race matters,” a lawyer with the Pacific Legal Foundation in Sacramento, Calif., Sharon Browne, said. “We’re teaching these children that at a very early age, which is completely contrary to what our country is built on, especially the equal protection clause.”

The Supreme Court said in the university context that institutions had a “compelling interest” in fostering campus diversity, including a mix of races. The central question in the latest cases is whether that same interest warrants race-conscious assignments at other levels.

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


The district’s most recent rules call for race to serve as a tiebreaker in schools that are more than 65% white or 75% minority. Because of the litigation, the district hasn’t used race in assigning students since 2002. In 2000-01, race was a factor in 300 of the 3,000 ninth-grade assignments. The integration tiebreaker applied to four schools that year, three of which were predominantly white.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that the Seattle program was constitutional, pointing to the Supreme Court’s 2003 decision in Grutter v. Bollinger, which upheld university affirmative action.

The appeals court said the school district had a compelling interest in “securing the educational and social benefits of racial [and ethnic] diversity” and “ameliorating racial isolation or concentration in its high schools by ensuring that its assignments do not simply replicate Seattle’s segregated housing patterns.”

The Kentucky case concerns Jefferson County, which has 87 elementary schools, 23 middle schools, and 20 high schools. The district’s integration plan requires each of those schools to have between 15% and 50% black students.

The New York Sun

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