Considering Race

School officials should be permitted to 'stir the melting pot.'

THE SUPREME Court agreed last week to hear a pair of cases that almost guarantee a politically explosive next term. The justices will hear challenges to programs in Louisville and Seattle that consider the race of students in deciding public school placements. The programs differ, but both take race into account in an effort to create diversity within individual schools. A decision that disallowed this practice would disablereasonable efforts to achieve integrated schools in districts with significant residential segregation.

Government-sponsored racial classifications are always disquieting in a society committed to equal protection under law. But the Supreme Court recently upheld carefully crafted affirmative action programs in higher education in the name of diversity. If that's a compelling goal for university administrators -- and we think it is -- how much more compelling is it for city officials dealing with younger students still learning about life in a multiethnic society. What's more, the Louisville plan largely mimics the court-ordered desegregation plan that the city was under for years to remedy past discrimination. It cannot be that steps the city was compelled to take to comply with the 14th Amendment now violate that same amendment if continued voluntarily.

In addition, as conservative Judge Alex Kozinski wrote in a thoughtful concurrence to the decision by the Court of Appeals for the 9th Circuit upholding the Seattle plan, there's a mismatch between the Supreme Court's case law and the issue these programs pose. They are not designed to oppress African Americans; nor are they designed, like affirmative action programs, to give them a leg up. Rather, the Seattle program uses race as one of several tiebreakers when too many children of any one race want to go to the same school. Such "stirring of the melting pot," in Judge Kozinski's words, seems profoundly different from programs that consider race in the allocation of government benefits or harms. Judge Kozinski plausibly asks whether, given this, the courts should even apply a traditionally rigorous equal-protection standard or whether they should instead treat the matter as one where deference to local government officials makes sense.

The justices must avoid adopting a hard rule that demands that school districts act in a race-blind fashion. De facto public school segregation has many causes: white flight from cities, the tendency of people of all ethnicities to want to live among people like themselves, the lack of affordable housing in affluent areas and in some parts of the country the vestiges of legally enforced segregation, to name only a few. Many of these are beyond the power of local school boards to address. Those institutions, however, should not be constitutionally forbidden from taking reasonable steps to help children of diverse backgrounds learn to live, play and eventually work together.