Divided Court Limits Use of Race by School Districts

Those who defended the school's plans clung to Kennedy's separation from the other conservatives. "In some ways, considering what we anticipated, it's not as bad as it could have been, but it's bad," said Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund.

But some education experts said school districts will probably abandon race-conscious policies because of the court's decision -- even though that, with Kennedy, five members of the court said race sometimes could be used to achieve diversity.

"The court has left us feeling good about the overarching theory but left us very little maneuvering room to reach that intent," said Michael Casserly, executive director of the Council of the Great City Schools, a coalition of the nation's largest urban public school systems. "Many school districts are likely to give up."

"As a practical matter, the strategies that [Kennedy] outlined have limited viability."

Some school districts have already altered their plans because of lower-court decisions. In the Washington area, Montgomery County 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. Arlington County school officials no longer give extra credit to minorities when deciding admission to the popular Arlington Traditional Elementary School.

Those who helped bring the challenges praised the decision.

"These are the most important decisions on the use of race since Brown v. Board of Education," said Sharon Browne, an attorney with the Pacific Legal Foundation. "The high court has decided correctly that children must not be stereotyped by the color of their skin, but rather treated as individuals."

In the cases decided yesterday -- Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education-- both systems offered parents and students a choice of schools, partly to achieve a level of integration that would not otherwise be possible because of racially segregated housing patterns.

Both set goals for white and minority representation at schools and, along with other factors, made decisions about school assignments based on a student's race. Seattle categorized students as either white or nonwhite, and used the information when deciding who got into high schools that could not handle all who wanted to attend.

Louisville's program assigned students to schools and then used race in deciding who could transfer, with the goal of not letting black student populations dip below 15 percent or exceed 50 percent.

Seattle no longer uses its plan because of the litigation. Louisville voluntarily adopted its program after the school emerged from a 25-year desegregation plan overseen by the federal courts. The goal was to maintain the integration it had achieved.

Roberts said the schools had not met the strict test of when the use of race is allowed. Seattle schools had never been segregated by law, Roberts said, and Louisville had eliminated the vestiges of its segregation policies. Therefore, neither met the test of a "compelling interest of remedying the effects of past intentional discrimination."