Justices to Hear Cases of Race-Conscious School Placements

By Charles Lane
Washington Post Staff Writer
Tuesday, June 6, 2006

The Supreme Court announced yesterday that it will rule on the race-conscious assignment of students to public schools, in a pair of cases that could produce some of the most important decisions on school integration since the busing battles of the 1960s and '70s.

The court agreed to hear arguments in separate lawsuits by white parents in Seattle and Jefferson County, Ky., which encompasses Louisville, who say each public school system unconstitutionally discriminates based on skin color. The jurisdictions' programs differ, but each seeks to maintain racial balance with the help of numerical targets for minority enrollment.

Although the court has addressed race-conscious admissions for diversity in higher education, upholding them on a 5 to 4 vote in 2003, this would be the first time it has addressed the "diversity rationale" as it affects the country's 48 million public elementary and secondary school students. It will also be the first race-related constitutional case for President Bush's two appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

The court's decision to take the cases was something of a surprise, since all three federal appeals courts to rule since 2003 sided with the school systems. The court usually intervenes to settle lower-court conflicts.

Six months ago, before Alito replaced Sandra Day O'Connor, who wrote the 2003 opinion, the court declined to hear the challenge of a parent in Lynn, Mass., to a race-conscious plan.

"It's bad news for desegregation advocates," said Goodwin Liu, a Clinton administration education official who teaches constitutional law at the University of California at Berkeley. "It looks like the more conservative justices see they have a fifth vote to reverse these cases."

But lawyers for the Seattle and Louisville parents argued there was a circuit split because the post-2003 lower-court rulings clashed with three pre-2003 rulings against race-conscious policies.

Sharon Browne, principal attorney of the Pacific Legal Foundation, which supports the parents' lawsuits, said she "was pleased that the Court has decided to hear these cases. Together, these cases could put an end to schools using race as a factor to decide where children can attend public school."

Yesterday's decision returns the court to an area of American life that it revolutionized in 1954 with Brown v. Board Education -- and the lower-court desegregation orders, including busing in many cities, that flowed from that decision.

In the intervening years, however, direct court supervision of public school racial composition has generally lapsed, and schools face student demographics determined not only by the country's historic black-white divide, but also by immigration from around the world.

Embracing diversity not as a legal requirement but as an educational objective, school districts frequently offer alternatives to geographical assignment, including school choice and magnet school options. But these, in turn, can result in competition for spots at the most-sought-after schools.

"The decision and the opinions will be impactful," said Francisco Negron, general counsel of the National School Boards Association, which has supported the school districts in the lower courts. "We're in the post-integration era. Many desegregation lawsuits filed in the '70s have come to a natural ending point. . . . Schools are trying to implement policies that recognize the need for diversity."

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