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.

Justice Anthony M. Kennedy, the court's swing voter, has a strong record of opposition to race-conscious government policies, including a dissenting vote in the 2003 case.

But Kennedy has been known to change his mind. Just in case he may be in play this time around, each Bush brief concludes with a quotation from Kennedy's 2003 dissent, in which he warned against policies that "perpetuate the hostilities that proper consideration of race is designed to avoid."

It is not easy being new at the Supreme Court. O'Connor once wrote of her difficulties figuring out the Supreme Court's case-numbering system. And now Alito admits that there have been times during his first year when he literally did not know where he was.

"The Supreme Court building is one of the most confusing buildings I have ever been in," Alito told the Newark Star-Ledger last week. Wandering the grandiose structure, which is in the midst of a full-scale renovation, he "didn't know where anything was, how to get in or how to get out."

Alito confessed to difficulties switching on his microphone at oral arguments and to forgetting that it is the junior justice's job to answer the door when the justices gather for conferences. At his first one, someone knocked and, after a pause, Justice Stephen G. Breyer, who was the junior justice for 11 years before Alito came to the court, rose to answer it. Chief Justice John G. Roberts Jr. had to remind Alito to get up.

Alito also revealed that he and his family are holding on to their home in suburban West Caldwell, N.J., while he rents an apartment in Washington. Trends in the real estate market are not necessarily in Alito's favor.

In West Caldwell, the median house price is about $500,000, according to Schweppe Burgdorff Realtors of New Jersey. But comparable areas around Washington are pricier. If the Alitos want to relocate to Chevy Chase, near Roberts (O'Connor, Alito's predecessor, lived there, too), they will face a median price of about $1.1 million, according to the Greater Capital Area Association of Realtors.

As an associate justice, Alito makes $203,000 per year. His most recent financial disclosure form put his assets at more than $665,000, not counting his house. That is not bad for a lifelong federal employee. But he has a son at the University of Virginia (2005-2006 tuition, room, board and fees: $32,000) and a daughter starting at Georgetown (ditto) this fall.

Maybe he can find something in Baltimore.