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."
Seattle and Louisville say their plans are consistent with the Supreme Court's 2003 ruling -- which allowed universities to consider race as one of many factors when assembling diverse colleges and graduate schools.
They say their use of race is necessary to meet compelling educational goals, and accounts for a modest number of school assignments.
But the plaintiffs argue that school officials have gone beyond what the court permitted in 2003, because they ultimately rely on fixed numerical targets for assigning students.
Each system adopted its plan voluntarily, but against the backdrop of different social and legal histories.
In Louisville, the 97,000-student public school population is 34 percent black, with the rest predominantly white. In 1973, a federal court ruled that it was officially, and unlawfully, segregated. This led to court-ordered busing from 1975 to 1984. The system remained under court supervision until 2000.
The current Louisville plan says that all schools, including magnets, must have a minimum black enrollment of 15 percent and a maximum of 50 percent.
The only exceptions are for pre-kindergarten, kindergarten, alternative and special schools -- and four magnet schools covered by a federal judge's ruling barring the use of race to allocate educational opportunities not widely available.
Parent Crystal D. Meredith, however, argues that the plan cost her son admission to the school in his neighborhood.
In Seattle, which has substantial Asian and Hispanic populations as well as large numbers of whites and African Americans, no court has ever found the 47,000-student school system guilty of official segregation. Instead, the school board says that diversity is a key educational value and that segregated housing patterns must be changed.
The city began busing in 1977 but stopped in 1988. Under an "Open Choice" plan adopted in 1998, the goal was to have schools close to the city's overall racial composition: 60 percent minority, 40 percent white. Children can attend any school. At schools where demand for spaces exceeds supply, however, siblings of current students have priority -- and an "integration tiebreaker" favors students whose race would tip a school toward 60-40.
The tiebreaker has not been in use since 2002 because of the litigation, which was brought by Parents Involved in Community Schools, a group of white parents who say it cost their children admission to the popular Ballard High School.
The tiebreaker was initially invalidated by a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit. But an 11-judge panel granted a new hearing and upheld it 7 to 4.
The cases are Parents Involved in Community Schools v. Seattle School District No. 1 , No. 05-908, and Meredith v. Jefferson County Board of Education , No. 05-915. Argument will take place in December, with decisions due by July 2007.