The U.S. Supreme Court heard arguments last week on the constitutionality of using race as a tool in assigning students to public schools, in two cases in which advocates on both sides claim to be defending the legacy of Brown v. Board of Education and the nation鈥檚 commitment to equality.
The justices listened intently and often sparred with the lawyers over the race-conscious school assignment plans adopted by the Seattle and Jefferson County, Ky., school districts.
By the end of the two hours of arguments on Dec. 4, the court鈥檚 conservative and liberal blocs had staked out starkly opposite positions, with Justice Anthony M. Kennedy likely to be the swing vote for a 5-4 decision.
Justice Kennedy鈥檚 tough questioning of lawyers representing the districts suggested, to many observers, that the court is likely to strike down both plans鈥攁nd possibly prohibit any government consideration of an individual鈥檚 race to promote diversity in school enrollment.
鈥淭he problem is that 鈥� you鈥檙e characterizing each student by reason of the color of his or her skin,鈥� Justice Kennedy said to Michael F. Madden, the lawyer defending Seattle鈥檚 race-conscious tiebreaker for its high schools. 鈥淚t seems to me that [race] should only be, if ever allowed, allowed as a last resort.鈥�
The court鈥檚 more conservative members appeared highly skeptical of the plans in the two districts, which sometimes take race into account in determining where students will attend school, with the goal of maintaining or creating racial diversity similar to the overall student population of the districts.
From Inside the Court
In this audio feature, Assistant Managing Editor Mark Walsh reports on the U.S. Supreme Court鈥檚 hearing of arguments on the race-conscious school assignment plans adopted by the Seattle and Jefferson County, Ky., school districts. By the end of the two hours of arguments, the court鈥檚 conservative and liberal blocs had staked out starkly opposite positions, having often sparred with the lawyers when presenting their cases.
Some of the more liberal members appeared supportive of letting school officials consider race.
Justice Ruth Bader Ginsburg wondered why the Jefferson County school system鈥檚 switch from assigning students based on race under a court-supervised desegregation plan to using a voluntary plan suddenly made the idea legally suspect.
鈥淲hat鈥檚 constitutionally required one day gets constitutionally prohibited the next day,鈥� she said to Teddy B. Gordon, the lawyer for a white family that challenged the Kentucky district鈥檚 voluntary race-conscious policy. 鈥淭hat鈥檚 very odd.鈥�
Brown v. Board Cited
The arguments in Parents Involved in Community Schools v. Seattle School District No. 1 (Case No. 05-908)and Meredith v. Jefferson County Board of Education (No. 05-915) came as hundreds of supporters of racial diversity in education rallied outside the Supreme Court building.
The 97,000-student Jefferson County district, which includes the city of Louisville, formerly was under a court-supervised desegregation plan. The district adopted a voluntary plan in 2001 after a federal court declared it 鈥渦nitary,鈥� or free of the vestiges of past racial segregation.
Jefferson County鈥檚 鈥渕anaged choice鈥� plan includes consideration of race for some student assignments to schools. The plan seeks to have a black enrollment of at least 15 percent, but no more than 50 percent, at each school.
The 46,000-student Seattle district was never under court-ordered desegregation, but in 2000 adopted an assignment plan that it says uses race as a way to foster educational and social benefits in its classrooms. The plan uses race as one of several tiebreakers for the district鈥檚 10 high schools when certain schools are oversubscribed after 9th graders select their preferred schools.
Although the family challenging the Jefferson County plan is white, the families challenging the Seattle plan include whites, blacks, and members of other racial and ethnic groups.
The lawyers for the two districts defended the disputed assignment plans as narrowly tailored efforts to keep their schools racially diverse.
鈥淭his case presents a story of a board of education that replaced a desegregation decree with a student-assignment plan that works,鈥� said Francis J. Mellen Jr., the lawyer for the Jefferson County district.
Chief Justice John G. Roberts Jr. asked Mr. Mellen about then-Justice Sandra Day O鈥機onnor鈥檚 statement in Grutter v. Bollinger, the 2003 case that upheld a race-conscious admissions plan at the University of Michigan law school, that she expected such affirmative action policies might no longer be needed in 25 more years.
鈥淚 can鈥檛 read the future,鈥� Mr. Mellen said. But the Jefferson County school board, by modifying its plan, as it did in 1984, 1994, 1996, and 2000, would be able to tailor it more narrowly as local circumstances allowed, he said.
Mr. Gordon, the lawyer challenging the Jefferson County plan, said that to have race used in this way for another 25 or 30 years 鈥渨ill perpetuate racial isolationism.鈥�
The chief justice, who joined the court last year, appeared generally skeptical of the districts鈥� use of race.
The court鈥檚 newest member, Justice Samuel A. Alito Jr., also appeared skeptical, questioning Mr. Madden about two Seattle high schools that had largely black enrollments, and whether their students were benefiting from the district鈥檚 racial-diversity policy.
Both plans came under sharp attack from the Bush administration.
U.S. Solicitor General Paul D. Clement, the administration鈥檚 lawyer, who took part in arguments on the side of the families in both cases, said that the Seattle district鈥檚 plan was based not on 鈥渄iversity but demographics.鈥�
The district is 鈥渃learly working backward from the overall demographics of the school district, rather than working forward to any clearly articulated pedagogical goal,鈥� Mr. Clement said.
Mr. Clement countered what was perhaps the strongest defense of the districts鈥� plans from the bench, by Justice Stephen G. Breyer.
Justice Breyer cited the Supreme Court鈥檚 1971 ruling in Swann v. Charlotte-Mecklenburg Board of Education, which authorized student busing for desegregation.
鈥淭hirty-five years ago in Swann, this court said that a school board 鈥� 鈥榗ould well conclude that to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole,鈥� 鈥� Justice Breyer said. 鈥淭housands of school districts across the country, we鈥檙e told, have relied on that statement in an opinion to try to bring about a degree of integration.鈥�
Mr. Clement replied that districts would have been 鈥渕isguided鈥� to rely on that language after later Supreme Court decisions cast doubt on government racial-balancing efforts.
The historic 1954 Brown decision had been cited in the briefs filed by all sides in the two cases. The parents highlighted the ideal of race neutrality, and the school districts pointed to the ruling鈥檚 aim of overcoming discrimination against African-Americans.
In the oral arguments, the districts鈥� lawyers found themselves fending off unfavorable comparisons of the race-conscious assignment policies to segregated school systems struck down in Brown.
For example, Mr. Madden distinguished Seattle鈥檚 student assignment plan from the kind of competitive admissions plan at the college level in which some minority group members get a seat at the expense of other applicants.
Chief Justice Roberts rejoined, 鈥淚 mean, everyone got a seat in Brown as well; because they were assigned to those seats on the basis of race, it violated equal protection.鈥�
And Justice John Paul Stevens urged the solicitor general to respect the Jefferson County school board鈥檚 ability to make local decisions.
鈥淸T]he local school board has made a judgment which has a lot of experience under both鈥� a mandatory desegregation plan and its voluntary race-based plan, the justice said.
Mr. Clement replied: 鈥淭here鈥檚 a lot of experience in Brown, too,鈥� he said, evidently referring to school systems that maintained segregated schools, 鈥渁nd those were local school boards, too.鈥�
Site Management
Many analysts commenting soon after the oral arguments interpreted Justice Kennedy as being inclined to outlaw any use of race by school districts.
But Washington lawyer Andrew Pincus expressed another view on Scotusblog, a Web site devoted to discussion of the Supreme Court, by zeroing in on the justice鈥檚 questions about a hypothetical district鈥檚 use of site selection for a new school to achieve a diverse student population.
鈥淐an you use race for site selection?鈥� Justice Kennedy asked Harry J.F. Korrell, the lawyer representing the families challenging the Seattle plan, in that exchange.
Justice Kennedy鈥檚 hypothetical question supposed that the school district could choose one site in which the neighborhood student population would be all one race, a second site in which it would be all the other race, and a third site with a diversity of races.
鈥淐an the school board, with the intent to have diversity, pick site Number 3?鈥� he asked Mr. Korrell.
Mr. Korrell said the U.S. Constitution prohibits the school board from doing so, in the absence of past discrimination. 鈥淭he government can鈥檛 be in the position of deciding what the right race mix is,鈥� the lawyer for the Seattle families said.
When Justice Kennedy broached the same thought with Mr. Clement, however, the solicitor general said it would be permissible for the district to pursue diversity by making such a race-conscious decision.
That response could be useful in a decision that allows the use of race, not only to decide the location of a new school, but equally to place magnet programs in existing schools or to change attendance boundaries for the sake of diversity, Mr. Pincus suggested in a Dec. 7 entry on the blog. Such policies would not result in assignment decisions based on the race of individual students, the idea that appeared most offensive to Justice Kennedy and some other members of the court.
The court is expected to issue decisions in the cases by July.
