By Robert Barnes
Washington Post Staff Writer
Monday, September 20, 2010; 6:21 AM
Since John G. Roberts Jr became chief justice five years ago, focus has been on the Supreme Court's changing makeup and shifting ideology. In the coming months, the Washington Post will examine the real-world consequences of the court's rulings in communities across the nation.
LOUISVILLE - Chief Justice John G. Roberts Jr. made it sound so simple that day in 2007, when he and four other members of the Supreme Court declared that this city's efforts to desegregate its schools violated the Constitution.
"The way to stop discrimination on the basis of race," Roberts wrote, "is to stop discriminating on the basis of race."
But life has been anything but simple for school officials here. They have steadfastly - or stubbornly, depending on the point of view - tried to maintain integrated classrooms despite the court's command that officials not consider race when assigning children to schools.
Consultants were hired, lawyers retained, census data scrubbed, boundaries redrawn, more buses bought, more routes proposed, new school choices offered and more lawsuits defended.
The final product, which integrates schools based on socioeconomic factors rather than on race alone, has proven to be more complex and costly than the previous system. Long bus rides and complaints from a vocal minority of parents have threatened popular support of the plan. The school board has delayed full implementation. The legislature is contemplating whether to guarantee parents a spot in their neighborhood schools.
It has been a long three years for school officials since the court for the first time took away the simplest and most efficient way to integrate classrooms: making decisions based upon a student's race. It was a landmark moment for a court that has long struggled with race-conscious decisions by government: when they are warranted, and when they have outlived their usefulness.
The ruling also marked a key moment in the emerging identity of the court headed by Roberts, who will mark his fifth anniversary as chief justice this month. It showed clearly a new majority of justices willing to move aggressively on social issues that had long divided their predecessors.
A string of 5 to 4 decisions on controversial social issues since then has mostly cheered conservatives who think the court is hewing more closely to the words of the Constitution.
That optimism among conservatives stems from President George W. Bush's ability to transform the tenor of the court with a new chief justice - Roberts, now 55 - and Justice Samuel A. Alito Jr., now 60, a game-changing replacement for the more moderate Sandra Day O'Connor.
Liberals sounded a call to arms, and at the end of the first full term of Roberts and Alito together, Justice Stephen G. Breyer signaled his unease with a comment that summed up the left's point of view on the new court.
"It is not often in the law that so few have so quickly changed so much," Breyer said.
But if the law changes quickly, the real-life implications of a Supreme Court decision can take years to unspool.
The school desegregation case provides a way to examine the question that always follows one of the court's major social policy decisions: What happens next?The decision's impact
The impact of the decision, which directly involved schools here and in Seattle and set rules for school boards across the nation, already has been noteworthy. Seattle has mostly abandoned efforts to force diverse classrooms; it has returned to a system of neighborhood schools augmented by magnet schools and new educational programs scattered throughout the city.
After the ruling, the Bush administration, which supported the challenges to the plans in Seattle and Louisville, warned other local school officials to be wary of assignment plans that relied on race. School attorneys advised their boards that such plans were sure to be challenged. The message was reinforced when conservative legal groups forced changes in school assignments in places as diverse as New York City and Beaumont, Tex.
The decision was cited when courts struck down teacher-assignment plans based on race in Memphis and Cincinnati.
But Louisville, along with a number of other like-minded systems across the country, is betting that using socioeconomic factors, not just race, will help maintain diverse schools and meet the Supreme Court's requirements.
Those who have battled the school system here say it is nothing more than an end run around the court's decision, a misguided experiment by school officials who should be focused on the bigger goal of improving education.
Tiffany Arnold is among the parents who sued the board of education in Jefferson County - which includes Louisville - when her child was initially assigned to a school she did not want.
"I still haven't heard of a benefit for any child being put through this," Arnold said recently at a lunch with her fellow challengers, just after a judge ruled that state law does not guarantee them a spot in the school closest to home. "We live already in a neighborhood that is diverse. If they could shed some light on how this helps anyone, maybe we wouldn't be as angry as we are."
But school Superintendent Sheldon Berman, who started his job days after the 2007 Supreme Court decision, said he is convinced that a school system cannot be successful for all children without diverse classrooms. If Louisville's plan is more costly and complex, he said, it is because of a flawed and doctrinaire court decision that ignored the consequences.
"If we're going to create a vital democracy, and see our schools as the seeds of that democracy, we need schools that maintain diversity," Berman said in a recent interview.
"And I think the court missed that. I thought the Roberts decision was extraordinarily narrow, and unrealistic about the real circumstances in schools."A new look at race
That the court even accepted the case showed that something different was underway. Just months earlier, when O'Connor was still on the court, the justices had declined to review a case from Massachusetts that raised identical questions about race and school assignments.
But after Alito replaced O'Connor, the court agreed to review the challenges to the school-assignment rules in Seattle and Louisville. Both used race in some instances, and both had been upheld by separate federal appeals courts.
Louisville's case was particularly striking. From 1975 to 2000, the system was under a federal court order to desegregate its schools. When the court decided that had been accomplished, school officials voluntarily continued with the race-conscious plans so that the progress made would not be lost.
It was a point of civic pride to make sure that the combined city and county schools not be seen as segregated, said John K. Bush, a Louisville lawyer who filed a brief with the court on behalf of Mayor Jerry Abramson and Greater Louisville Inc., the city's chamber of commerce.
Bush, president of the local Federalist Society, and others in Louisville understood they were dealing with a changed court, and tried to frame the argument in terms they hoped would appeal to conservatives: that local officials should make choices about how to run the schools.
But Ted R. Gordon, a local lawyer who has sued the school board on numerous occasions over the policy, said that could not overcome the Constitution's guarantee that a person's race not be the determining factor in government decisions.
The court agreed. Five justices said it violated the Constitution to look at an individual student's race in making assignments. Roberts wrote that it was the logical extension of the court's landmark desegregation ruling, Brown v. Board of Education.
"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin," Roberts wrote. "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."
Justice Clarence Thomas, the court's only African American, agreed. He denounced government's "racial paternalism" even if for worthy motives. "If our history has taught us anything, it has taught us to beware of elites bearing racial theories."
The court's liberals were livid, especially at the comparison to Brown. Breyer responded that it was a "cruel distortion of history" for Roberts to say that "efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration."
But somewhere between those two poles - as is often the case - was Justice Anthony M. Kennedy. He voted with the conservative majority to forbid making decisions based on an individual's race, but he described Roberts' command to stop considering race as simplistic.
"Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution," he wrote.
Schools had a compelling interest in promoting diversity, he said. "Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered," Kennedy said.
On the day of the decision, the crawl at the bottom of the CNN screen informed Pat Todd, Louisville's longtime school-assignment director, that the plan she had worked on for years was unconstitutional. "My initial reaction was complete horror," she recalled recently.
But when the school board's lawyers began reading the 185-page ruling in Parents Involved in Community Schools v. Seattle and Meredith v. Jefferson County Board of Education - they realized that Kennedy's opinion provided a road map for the future.An alternate approach
It was a road many school systems had already taken, having already "seen the handwriting on the wall" that using race alone in making school assignments was not a long-term option, according to the Century Foundation's Richard D. Kahlenberg.
School systems in the Washington area, for instance, have been forbidden since the 1990s to rely only on race, the result of a ruling from the U.S. Court of Appeals for the 4th Circuit in Richmond.
The number of school systems using socioeconomic factors to assign students has grown from a handful to about 80 in the past decade, Kahlenberg said, serving nearly 4.2 million schoolchildren. And the Obama administration's Education Department has signaled interest in such methods, giving small grants to systems looking to develop diversity programs that comply with the court's decision.
Louisville's new plan splits the county into two geographic districts - one having higher concentrations of minorities, lower incomes and less educational attainment - and requires each school in the district to have a mix of students from both.
Parents choose four to six schools as possibilities for their children, but about 20 percent do not receive their first or second choices. That has led to two unsuccessful lawsuits and plenty of angry parents.
Belinda Abernethy is one. Her 5-year-old boy was assigned to a kindergarten six miles from their home. He would have passed an elementary school less than a mile away just to get to the bus stop. He faced a one-hour bus trip from there, and Abernethy decided to teach him at home rather than put him on the bus.
She said school officials told her they couldn't build a classroom at a school of her choice "for one little boy," but they designed a bus route just for him.
And school-assignment director Todd acknowledges that one irony of the new system is that schools deemed integrated under the old racial classifications are no longer considered diverse under the geographic criteria. That means, for instance, that middle-class African American children at an integrated school at one end of the county may be sent to a poor, inner-city school to achieve geographic balance.
Berman agrees with other national experts that promoting diverse schools is one of the best ways to improve the educational experience. He has the strong backing of the business community and the Louisville Courier-Journal'' editorial board. But he acknowledges that there could be trouble ahead.
"I look at school district after school district that has given up on attempts to desegregate, and I think that foreshadows problems for us," he said.
One could be political. Wake County, N.C., which includes Raleigh, was a leader in using socioeconomic factors to bring diversity to its schools. But the public grew disenchanted with constantly shifting school boundaries, and a newly elected school board is considering getting rid of the system.
Jefferson County School Board Chairman Debbie Wesslund supported the new plan but is feeling the pressure in Louisville. She's up for reelection in November, and two of the three candidates who oppose her are building their campaigns on opposition to the new school-assignment plan.
"There was no real opposition when we were designing the plan," Wesslund said in a recent interview. "But a great idea like diversity can get damaged by the reality of having to try to implement something."
She added: "We've got to look at the plan objectively and see if it is helping student achievement. That's the bottom line."
The other potential problem ahead is legal. Berman thinks the system's new plan is better, but he acknowledges that it is still open to challenge. The Supreme Court's decision hinted at what schools can do to diversify without violating the Constitution, but at this point the school system is relying only on Kennedy's opinion.
"Because it is a 4-4-1 decision, we sit on a pinnacle, a question mark," he said. "The lack of unity that schools have a mandate to do this makes it even harder."