The high court, race and education

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On Monday, the Supreme Court announced it would hear two cases that will have a profound impact on the use of race in admissions to schools across the country. The first case, Meredith v. Jefferson County Board of Education, is a challenge to a Kentucky school district's policy of requiring between 15 percent and 50 percent black enrollment in order to maintain a prescribed racial balance. The other case, Parents Involved in Community Schools v. Seattle School District No. 1, challenges a policy of using a racial guideline of 60 percent minority, 40 percent white when deciding which students to admit to an already filled school. Both cases were brought by parents whose children were excluded from their schools of choice because of the color of their skin.

The last Supreme Court rulings on the use of racial preferences in education, and the basis for the lower court rulings in both of these two cases, were the 2003 challenges to the University of Michigan affirmative action policies that resulted in underrepresented but lesser-qualified applicants receiving preferential treatment in admissions. While the court in Grutter v. Bollinger decided that racial diversity produces significant educational benefits, and presents a "compelling interest" to higher education, it nevertheless struck down the rigid and mechanical point system for undergraduate admission. That split provides the framework on which the policy in both cases was upheld. As the U.S. District Court in Kentucky noted, "the requirement that any use of race in a higher education admissions plan must further a compelling governmental interest and must be narrowly tailored to meet that interest." Lower courts in both cases have ruled that the policies satisfied both requirements.

Working from the precedent established in its Michigan rulings, the Supreme Court must consider how the precedent applies to the distinctly different environments of kindergarten through high school, and the issue of whether such fixed percentages, which smack of the mechanical nature of the University of Michigan point system, are too broad to be considered "narrowly tailored." The implications of this decision will make these two of the most important cases the Roberts court will hear this fall.

Three unusual factors surround the Supreme Court's decision to hear the cases. The first is that there was no split in rulings from the lower courts. Second, the court considered both cases multiple times -- six times for the Seattle case and seven for the Kentucky case -- before accepting. And third, the court declined to hear a very similar case six months ago, before Samuel Alito joined the court. It's not clear whether these circumstances can be interpreted as a more conservative court's desire to overturn the lower court rulings, and trying to guess what the Supreme Court will do is always a fool's errand. But both Chief Justice John Roberts and Justice Alito strongly opposed the use of race as a factor in admission when they worked in the Reagan administration.

We hope they still do. With Justice Sandra Day O'Connor, the swing vote in Grutter v. Bollinger, now retired, Justices Roberts and Alito may be poised to lead the court away from the race-based admissions policies that it enshrined in 2003.