White House Fights Race-Based Admissions Policies

By Charles Lane
Monday, September 4, 2006

The Bush administration is siding with opponents of public school policies that assign students by race to some K-12 institutions, in the most important affirmative-action-related Supreme Court case since the justices upheld some forms of race-conscious admissions for higher education in 2003.

At issue are programs in Louisville and Seattle, which seek to ensure that the student bodies of public schools reflect the cities' ethnic composition. White parents have challenged the policies in court, arguing that their children were denied admission to their preferred schools because of race.

In briefs filed at the court on Aug. 21, the administration argued that such race-conscious assignment is just as unconstitutional as the racial segregation struck down 52 years ago in Brown v. Board of Education .

"The United States remains deeply committed to [Brown's] objective," Solicitor General Paul D. Clement wrote. "But once the effects of past de jure segregation have been remedied, the path forward does not involve new instances of de jure discrimination."

This year's cases are a crucial application of the court's three-year-old precedent on affirmative action at the University of Michigan, which says selective colleges can use race as a factor in admissions, as long as they give individual applicants holistic consideration and do not award minorities a fixed quantity of extra points.

It is not an exact analogy because the K-12 system of compulsory public education is different from the competitive university admissions process. Also, the two cities have slightly different policies arising from their different histories and demographics.

Louisville, whose school-age population is about one-third African American and two-thirds white, says it is trying to preserve integration achieved between 1975 and 2000, while it was under federal court order to break up its system of officially segregated schools. Under the policy, Louisville tries to keep the share of black students in magnet schools and specialized programs between 15 and 50 percent.

The courts never found Seattle guilty of segregation. Rather, its school officials adopted the current plan in the belief that students learn best in a diverse environment. Seattle's policy applies only to 10 high schools and is intended to counter segregated residential patterns in a multiethnic city of whites, blacks, Asians, Latinos and American Indians.

Students may choose any school in the city. But some Seattle high schools are usually "oversubscribed." If a student's race would tip the racial balance of a particular oversubscribed high school, he or she may be denied admission.

Federal appeals courts have upheld both plans. But the Bush administration's briefs say both violate the Constitution.

In Louisville, the fact that some white students are denied transfers into magnet programs because of their race makes the policy "indistinguishable from a quota," the brief argues. Seattle's plan "unfairly burdens innocent third parties," it says.

Opponents' chances of victory may be strong because of the departure of Sandra Day O'Connor, author of the 2003 opinion, and the addition of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., both former Reagan administration officials who worked against what they saw as racial quotas.

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