- The Washington Times - Tuesday, March 21, 2000

The Supreme Court yesterday let stand a ruling that Montgomery County, Md., may not deny a 7-year-old white boy's transfer to a magnet school solely because of his race.

Ironically, second-grader Jacob Eisenberg is moving to Virginia at the end of the school year, so he won't benefit directly, his father said yesterday.

The decision governs all school systems not under court-ordered desegregation throughout the 4th Judicial Circuit Maryland, Virginia, West Virginia and the Carolinas.

"I probably wouldn't have done it if I thought it was going to go this far," said Jacob's father, Jeffrey Eisenberg. The lawyer and lobbyist fought a school board all the way to the Supreme Court and got the justices to reject Montgomery County Public Schools' effort to overturn the 4th Circuit ruling.

"I thought they would settle or that I'd never lose. But when the federal district court ruled against me, it was just such a flagrantly incorrect decision that I was angry and didn't want them to get away with it," said Mr. Eisenberg. He said his son's math and science aptitude was a driving force.

Julie K. Underwood of the National School Boards Association in Alexandria called the decision a cruel blow to schools that "leaves them in the dark" on how to promote diversity. "The problem for schools is they're damned if they do and damned if they don't," she said.

"Creating a diverse learning environment is crucial to the academic mission. It helps children of all races to learn, to do better in the future," Mrs. Underwood said, pointing out that the order doesn't cover systems under federal court supervision.

The predominantly black Prince George's County school system recently ended court-ordered busing, and lawyers on all sides said it is not affected by the ruling because it remains under a plan that involves revitalized neighborhood schools and a magnet-school program based on merit exams and other factors, in addition to race.

Mr. Eisenberg said he and his wife, Elinor Merberg, will move from a racially mixed area of Silver Spring, Md., to a house in Arlington, Va., they have bought. Neither Jacob nor Johanna, 5, will attend Maryland schools this fall.

In an interview, he expressed mixed feelings about defeating a racial quota system whose goals he said he shares. "I'm really not too happy to be on the opposite side," Mr. Eisenberg said.

"The school board's position has no merit whatsoever. Socially, it's a very difficult issue. Legally, it's just devoid of merit," said the environmental lobbyist.

"I think the racial bar was too much, too unfair. I'm a moderate. I think Montgomery County was wrong, but I recognize they're doing their best to address a difficult issue," he said.

Jacob's neighborhood school, Glen Haven Elementary, was 24 percent white, 40 percent black, 25 percent Hispanic and 10 percent Asian at the time. White enrollment had dropped by 15 percent over the previous four years.

The magnet school, Rosemary Hills Elementary, was 66 percent white, 16 percent black, 14 percent Hispanic and 4 percent Asian.

"We have worked very hard to avoid creating racially isolated schools, and today's action by the Supreme Court essentially ties our hands in the face of the changing social demographics of our schools and communities," said Montgomery County Board of Education Chairman Patricia O'Neill.

"The thing that is most troublesome about the decision is that it gives schools so little room to move," said Patricia A. Brannan of Hogan & Hartson, who represented Montgomery County Public Schools.

"They are now told they can't take account of racial balance when doing transfers," said Miss Brannan, who also represents the National Association for the Advancement of Colored People in the Prince George's County case.

The transfer policy was frozen when the 4th Circuit ruled, said Beverly P. Jennison, a law professor at George Washington University, who became Mr. Eisenberg's co-counsel because she is a member of the Supreme Court Bar.

She said there are typically 3,000 to 4,000 transfers a year in the Montgomery system, whose purposes are described as stability, utilization, enrollment and personal hardship.

"It just means they can't use the race element of it," she said.

Montgomery never has been under a court order and desegregated voluntarily.

"All the transfer program did was it let children go as long as there was space for them where they wanted to go and they weren't creating racial isolation on either the receiving or sending end," Miss Brannan said.

"In this case, there was no hardship stated. The parents just stated that the program looked better for this child," she said.

"School districts may take voluntary, race-conscious action to avoid creating racial isolation," she said in her brief for the school system.

She contended in an interview as she had in court that there is no significant difference in math and science teaching at elementary schools.

"No one at the elementary level doesn't get the basic math and science," she said.

Montgomery's race-based ban blocked transfers in or out of specific schools depending on whether the applicant was white, Hispanic, black or Asian.

Thirteen schools wouldn't let blacks leave, eight restricted Asians and 15 kept all Hispanics. Poolesville and Darnestown were among those that wouldn't allow any of those three racial categories to leave and Poolesville only allowed whites to leave.

Twenty schools wouldn't permit whites to transfer, including Glen Haven, where Jacob Eisenberg is a second-grader and part of the 24 percent of students who are white.

Incoming students were screened at some schools. Ten schools barred blacks from transferring in, 10 barred Asians, 17 denied permission to Hispanics, and three blocked whites.

Yesterday's decision may also have effectively killed the appeal to the high court filed Jan. 31 by the Arlington School Board, which has been fighting a court order to dismantle its race and income-weighted admissions policies to foster diversity at a popular magnet school.

Grace Tuttle, the plaintiff in the case, has been given extra time, until March 31, to answer the board's appeal.

"The good news is that this is the end of it," Arlington board member Dave Foster said on the assumption the board's cause is lost. "Now we can move on and find ways to improve diversity in ways that aren't legally suspect."

The county has a student body that is about 41 percent white, 32 percent Hispanic, 17 percent black and 10 percent Asian.

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