- The Washington Times - Monday, December 4, 2006

The Supreme Court yesterday explored the question of how far districts can go in ensuring diverse public schools, hearing cases from parents in Louisville, Ky., and Seattle who argue it is wrong to use race as a factor in assigning students to schools.

At issue is whether students can be denied admission to their top choice of public school and assigned elsewhere in order to keep the schools racially mixed.

Attorneys for the school districts argued race is just one of several factors taken into account and usually isn’t the main factor. But they said without the plans it would be very difficult to prevent more schools from being segregated by choice or by reflecting the racial makeup of the neighborhood.

“Ultimately, we’d have a resegregated school system,” said Francis Mellen Jr., who represented the Louisville schools.

Louisville’s schools followed a systemwide federally mandated desegregation plan for 25 years and the board ultimately decided to keep much of it in place. Mr. Mellen said it is a success story that has support from both black and white parents.

Lawyers challenging the programs, including a representative from the Justice Department, said a racially diverse school is a fine goal, but there are ways to achieve it without using what amounts to unfair racial quotas.

“This strikes at the heart of the Equal Protection Clause [of the 14th Amendment], which commands that government treat people as individuals, not simply as members of a racial class,” said Harry Korrell, who represented a group of Seattle parents.

The court’s more liberal justices seemed to have no problem with using race to keep schools mixed and said the plaintiffs’ thinking simply doesn’t compute. “It’s very hard for me to see how you can have a racial objective, but a nonracial means to get there,” said Justice Ruth Bader Ginsburg.

Conservative justices — including Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., the court’s two newest members, appointed by President Bush — did not seem thrilled with the programs.

Justice Anthony M. Kennedy, who could be the deciding vote, said the Seattle program, which applies to high school students, seems to be saying that “everybody can have a meal,” but only some people get “dessert,” since certain students are denied access to schools they want owing to their race.

Mr. Korrell said that happened to about 300 Seattle high school students, both black and white.

Michael F. Madden, representing the Seattle school district, argued that the students aren’t being denied admission; rather, the seats are simply being distributed. But Justice Roberts said, “The decision to distribute, as you put it, was based on skin color and not any other factor.”

Rulings in the cases are expected to be handed down by the end of June.

Repeated reference was made yesterday to a 2003 case in which the Supreme Court OK’d a law school affirmative-action program at the University of Michigan.

Mr. Madden said it is hard to compare the Seattle case, since it doesn’t deny one student a better education than another student. “This is not like being denied access to a state’s flagship university,” he said.

Outside of the court, Theodore M. Shaw, director of the NAACP’s Legal Defense and Educational Fund, said that if the court rules against these programs “it will be a reversal of historic proportions.”

He said Justice Kennedy was especially “active” in the questioning and is usually difficult to convince on desegregation cases.

This article is based in part on wire service reports.

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