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Divided Court Limits Use of Race by School Districts

By Robert Barnes
Washington Post Staff Writer
Friday, June 29, 2007

A divided Supreme Court yesterday restricted the ability of public school districts to use race to determine which schools students can attend, a decision that could sharply limit integration programs across the nation.

The nine justices split decisively along ideological grounds, with a five-justice majority ruling that school admission programs in Seattle and Louisville violated the Constitution's guarantee of equal protection to individuals. Educators said the decision may lead many districts to drop efforts at racially balancing schools.

In a dramatic 45 minutes on the final day of the court's term, three justices took turns reading sometimes-biting opinions that portrayed the ruling as either the natural affirmation or a bitter betrayal of the landmark Brown v. Board of Education desegregation decision of 1954.

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin," Chief Justice John G. Roberts Jr. wrote for a plurality that included Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. "The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again -- even for very different reasons."

He added: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The court's four liberals delivered a scathing dissent that was twice as long as Roberts's opinion. Justice Stephen G. Breyer said the decision is one "the court and the nation will come to regret."

"The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration," Breyer wrote. "Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950s to Louisville and Seattle in the modern day."

But Roberts, writing the most important opinion of his two years presiding over the court, said that even the good intentions of districts trying to maintain integrated schools were not enough to overcome constitutional protections of individual rights.

Justice Anthony M. Kennedy cast the deciding vote in agreeing with the court's conservatives to strike down the school plans, but he pointedly declined to sign on to about half of Roberts's 41-page opinion.

His position -- somewhere between the conservatives' view that race may not be used to classify students and the liberals' position that it is necessary to achieve integrated schools -- made the impact of the ruling a bit more ambiguous, and again raised his importance as the court goes forward.

"Parts of the opinion by the Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account," Kennedy wrote. "The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race."

Kennedy said that race could perhaps be considered in the tools that school districts use to bring "together students of diverse backgrounds and races." He mentioned magnet schools, "strategic site selection" of new schools, redrawing attendance zones and other measures.

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."

Nor were the plans "narrowly tailored," Roberts wrote, because the districts had not shown they made any other efforts to reach the goal of diversity.

But beyond the cases at hand, Roberts made clear that the conservatives on the court had a much broader concern that such plans violated the equal-protection clause of the 14th Amendment.

"Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it," Roberts wrote.

Thomas added in a concurring opinion that the dissenters would "constitutionalize today's faddish social theories . . . if our history has taught us anything, it has taught us to beware of elites bearing racial theories."

Breyer said that the conservatives had abandoned the court's precedents and misread Brown. Segregationist policies, Breyer said, didn't simply tell black children where they could go to school but "perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination."

"To invalidate the plans under review is to threaten the promise of Brown," he wrote. "The plurality's position, I fear, would break that promise."

Yesterday's decision does not change the court's previous holding that race can be considered as part of an "individualized, holistic" review of higher education applicants.

Staff writers Darryl Fears and Amit R. Paley contributed to this report.

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