- The Washington Times - Monday, June 5, 2006

The Supreme Court said yesterday it will hear appeals of two cases that could determine if race can be used in assigning students to public schools for the purpose of enhancing enrollment diversity in situations where court orders are not involved.

The court announced that it will take up the case this fall of a Louisville, Ky., woman who says the Jefferson County Public Schools’ desegregation plan is unconstitutional because it barred her son from transferring to a better school. Her son is white.

In the second case, a Seattle parents’ group charges that a policy of the Seattle school district that allowed students to select their high schools but used race as a tiebreaker to decide who fills limited spots, was unfair. The district ended the policy as a result of parents’ complaints, but the litigation has continued.

Both the Seattle and Kentucky cases challenge a school system’s ability to desegregate schools voluntarily without a court order.

These will be the high court’s first rulings on diversity plans. The outcome is likely to hinge on the vote of the newest justice, conservative Samuel A. Alito Jr. In a 5-4 decision last week, Justice Alito was the tiebreaker in a case that found that public employees — including whistleblowers — do not enjoy free-speech rights when they discuss work-related matters.

Last December, when Justice Sandra Day O’Connor was still on the bench, the Supreme Court rejected another case involving the use of race as a factor in school admissions to achieve diversity. The case involved a small public school system in Lynn, Mass., which has a tiebreaker system similar to the one used in Seattle.

Critics of such policies said the court’s announcement that it will accept the appeals of the Seattle and Kentucky cases hints at a new aggressiveness by the court under Chief Justice John G. Roberts Jr., who is also conservative, in dealing with race issues in public schools.

Either that’s the case, “or the former court simply knew these other cases were in the pipeline,” said Ted Gordon, the attorney for Crystal Meredith, who is suing the Jefferson County school district for denying her son the right to attend a school in his immediate neighborhood.

Mr. Gordon said he and his client are thrilled that the Supreme Court will examine the two cases.

“This is a surreal experience,” he said.

The Jefferson County school district’s policy allows parents and students some choice among schools. But it requires that most schools keep black enrollment from rising above 50 percent or dropping below 15 percent. The system, which has 100,000 students, is about 35 percent black.

In a telephone interview yesterday, Mr. Gordon said Jefferson County’s enrollment policy is “absolutely based on racial quotas” and is “unconstitutional.”

“We want kids to be admitted to schools because of merit, not race,” he said.

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