By Robert Barnes
Washington Post Staff Writer
Sunday, December 3, 2006
Louisville Mayor Jerry E. Abramson is not sure whether it qualifies as irony or not.
For 25 years, his home town was under federal court order to integrate its public schools. Now that the painful and bitter chapter is closed, and the school board has come up with its own plan to make sure the schools remain racially diverse, Louisville could find itself under federal court order to stop.
"You just sort of scratch your head when you think about that," Abramson said.
More than 50 years after the Supreme Court decided in Brown v. Board of Education that separate schools are inherently unequal, the court will consider tomorrow whether race can still be a factor when school systems design programs to promote racial integration. A broadly written decision on Louisville's plan, and on a related one from Seattle, could have a profound impact on school systems across the country.
It is the first time in more than a decade that the Supreme Court will consider what is proper for school systems to do to promote desegregation, and it is the first test on the issue for two new justices who in the past have been skeptical about the use of racial classifications.
Both sides have circled Chief Justice John G. Roberts Jr.'s dissenting opinion in a voting rights case decided in the last term that "it is a sordid business, this divvying us up by race."
Because of the high stakes perceived by both sides of the argument, the cases have produced a blizzard of studies and conflicting legal briefs.
More than 50 groups and organizations have filed friend-of-the-court briefs on behalf of the Louisville and Seattle school systems, which use race as one factor in assigning students under their school-choice plans. The small harm done to a few students who do not get their first choice of schools, Louisville argued in its brief, is outweighed by the value of an integrated school system that "significantly advances the goal of teaching students how to participate in a democracy that has formed a single society out of many diverse people."
Among the school systems' eclectic band of supporters: The American Psychological Association, a coalition of historians, the NCAA and a group of former professional basketball players, and 10 former high-ranking Defense Department officials.
On the other side, the Bush administration and a number of conservative legal organizations have joined the white parents in the two cities who brought the suits. Children were denied entrance to the schools of their choice, at least initially, for no reason other than the color of their skin, they say.
"School districts have an unquestioned interest in reducing minority isolation through race-neutral means," Solicitor General Paul D. Clement said in his brief to the court. "But the solution to addressing racial imbalance in communities or student bodies is not to adopt race-conscious measures."
It is unclear how many school systems across the country use race as a determining factor, or a "tiebreaker," in school assignments or how many use racial and ethnic breakdowns to help fashion school boundaries that foster integrated schools. Some have already altered their plans because of lower-court decisions.
Montgomery County in Maryland, for instance, has not considered race in assigning students to schools since 2000, when the U.S. Court of Appeals for the 4th Circuit declared that the school system's race-based student transfer policy was unconstitutional, according to Judith Bresler, general counsel to the county school board. Arlington County school officials no longer give extra credit to minorities when deciding admission to the popular Arlington Traditional Elementary School.
Even Seattle, which used race as a tiebreaker in its "open choice" assignment plan for ninth-graders entering high school, ended the practice in 2001, despite an appeals court finding that its plan was constitutional.
Louisville's plan has also survived lower-court challenges. It requires elementary school parents to rank their preferences from among a group of schools in their geographic area. In more than 90 percent of the cases, officials say, parents and students get their first or second choice. If not, they can apply for a transfer. But the Jefferson County Public Schools in Louisville, where African Americans make up 34 percent of the student body, wants to limit the black student population of each school to no less than 15 percent and no more than 50 percent. So in 2002, Joshua McDonald's kindergarten transfer was denied because it would have reduced the number of white students at the school to which he was assigned.
Joshua's mother, Crystal Meredith, joined in a lawsuit with other parents, even though the boy's transfer to his preferred school was approved the following year. In an unusually compact nine-page brief, Teddy B. Gordon, her attorney, asserts that the system violates the child's right to equal protection and "denigrates a five-year-old's self-worth and self-esteem by comporting him to be color-coded throughout his educational career."
Abramson, who, along with the local chamber of commerce, has filed a brief supporting the schools, said he sees the region's integrated schools as a key component of future prosperity. Even with the case before the Supreme Court, he said, the school-choice plan was not an issue in the recent elections, either in his campaign or in the campaigns of those running for the school board.
"Parents feel positive about it; the business community feels positive about it," Abramson said.
But that does not make it constitutional, the Justice Department says. And Terence J. Pell, whose Center for Individual Rights has filed a brief supporting the parents, said local officials can be ham-handed in using race. In Seattle, for instance, students are classified as either "white" or "nonwhite," he said.
That means, he noted, that a school with equal numbers of white, black, Hispanic, Asian American and Native American students would not be considered racially balanced because of the goal that each school must have a white population of at least 25 percent.
What opponents of the plans are really objecting to, said Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund, is using race at all. To him, that is not a natural outgrowth of the Brown decision but a perversion of it.
"The core question is whether efforts to integrate schools on a voluntary basis are going to be treated like [past] efforts to segregate public schools," he said.
Despite the obvious attention given Brown, the Supreme Court may be more likely to look to its decision three years ago in a case involving the admission policies of the University of Michigan. In that case, the court held that diversity in higher education is a compelling state interest but that remedies involving race must be "narrowly tailored."
There are obvious differences between an affirmative action policy at a selective law school and university and a public school system that guarantees a spot to every student. But the most important difference may be the makeup of the court.
Justice Sandra Day O'Connor was the deciding fifth vote that upheld the constitutionality of the law school's affirmative action plan. After her retirement, she was replaced by Justice Samuel A. Alito Jr., who as a government lawyer was critical of race-based plans.
Last year, while O'Connor was still on the court, justices declined to hear a school-choice plan from Massachusetts that was nearly identical to Louisville's. But with Alito on board, the court in June decided that the issue was ripe for review.
Staff writers Daniel de Vise and Tara Bahrampour contributed to this report.