- The Washington Times - Friday, June 29, 2007

The Supreme Court yesterday ruled that public school systems generally should not use race as the determining factor of where students can enroll, rejecting two school districts’ voluntary integration plans and threatening similar efforts nationwide.

The court’s 5-4 decision against schools districts in Louisville, Ky., and Seattle will limit how school systems pursue controlling the makeup of their student body but doesn’t ban the use of race entirely.

Chief Justice John G. Roberts Jr. delivered the court’s opinion, rejecting the setups in part because “under each plan when race comes into play, it is decisive by itself.”

He went even further, arguing that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justices Samuel A. Alito Jr., Clarence Thomas and Antonin Scalia concurred.

But the fifth vote — Justice Anthony M. Kennedy — made sure the court left room for race to be used in some limited circumstances. He agreed with the majority that these two specific plans didn’t meet constitutional muster but said in a separate opinion that race-conscious measures can be crafted to encourage diversity “without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”

Justice Stephen G. Breyer wrote the dissent, with the court’s three other liberal justices — Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — concurring.

“To invalidate the plans under review is to threaten the promise of Brown,” he said, referring to Brown v. Board of Education, the landmark case that ruled segregated schools unconstitutional. “This is a decision that the court and the nation will come to regret.”

Advocacy groups on both sides of the issue called yesterday’s decision historic.

Ward Connerly, founder of the American Civil Rights Institute, said it shows that “we’re clearly moving in the direction of a color-blind government,” adding that “the court is finally starting to catch up with what the American people have known for years: Race has no place in American public life.”

But Ralph Neas, president of People for the American Way Foundation, denounced the decision as “a terrible blow for school districts trying to overcome our nation’s long legacy of segregation and take seriously the importance of diversity.”

He also blamed President Bush for the decision, saying that his appointment of Chief Justice Roberts and Justice Alito meant the court is “turning its back on the promise” made in the Brown case.

Seattle’s voluntary plan, adopted in 1998, sought to have each school come close to the racial makeup of the overall district: 41 percent white and 59 percent nonwhite. It allowed incoming ninth-graders to choose any high school they want, but if too many students chose one school, the district employed a series of “tiebreakers” to determine admission. The first was whether the student had a sibling in the chosen school, but the next used the racial makeup of the school and the race of the student to ensure the school stayed near the 59-41 mix.

Jefferson County Public Schools, which oversees Louisville schools, had been under a court-ordered desegregation plan until 2000. In 2001, the district voluntarily adopted a plan to require all non-magnet schools to maintain a minimum black enrollment of 15 percent and a maximum black enrollment of 50 percent. Parents could choose from a cluster of schools but could be denied if their child would throw off the racial balance.

In both instances, white parents sued the districts after their children were denied the schools of their choice based on race.

Chief Justice Roberts argued that the districts didn’t prove that they should be able to use race as a determining factor.

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

Justice Kennedy disagreed with that specific reasoning, saying diversity “is a compelling educational goal.”

But both men criticized the plans for failing to meet muster. Justice Kennedy said Jefferson County failed to lay out any clear guidelines or oversight of their plan, and Seattle failed to explain how categories of “white” and “non-white” furthers the goal of diversity.

Chief Justice Roberts questioned how exactly schools that reflect the overall makeup of the district encourage diversity, and said that in each case the “extreme measure” of using race for assignment is not needed to achieve the districts’ stated goals.

Justice Kennedy suggested other ways to create racial diversity in schools, including strategic site selection of new schools, drawing attendance zones with demographics of the neighborhoods in mind, recruiting students and faculty in a targeted fashion and allocating resources for special programs.

Theodore M. Shaw, president of NAACP Legal Defense and Educational Fund, called the ruling “unfortunate” but said it maintains that schools can still seek to diversify. “The bottom line is that while we got rained on today, there’s a silver lining,” he said.

Richard D. Kahlenberg, a senior fellow at the Century Foundation, said the decision could spark a new kind of integration plan that would consider a family’s income when assigning students to schools. But Lisa Soronen, a senior staff attorney with the National School Board Association, said the ruling is “of concern” for potentially scaring districts away from diversity plans.

Wade Henderson, president of the Leadership Conference on Civil Rights, said his group will work with school districts to implement plans that fit Justice Kennedy’s approach and wage a “no-holds-barred” attack on discrepancies between wealthier and poorer schools.

But others argued that the court upheld the Constitution properly.

“The Constitution is color blind and does not allow preferences and distinctions in our society based on race,” said Wendy Long, chief counsel to the Judicial Confirmation Network and a former law clerk for Justice Thomas.

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