Montgomery County Board of Education members unanimously decided to take a reverse-discrimination decision to the U.S. Supreme Court, putting convictions about racial diversity ahead of legal voices urging caution.
At issue is whether Montgomery's policy of considering race and ethnicity in student transfers is constitutional. A federal appeals court panel last month ruled that it was not.
The Supreme Court could clarify whether and how school districts may use race to keep neighborhood schools from naturally resegregating--an area of law that is unclear. Or it could decide against the county or refuse to hear the case, setting a chilling precedent.
"If the Supreme Court upholds this case, the notion of diversity and integration in the United States will be turned back 30 years," said Julie Underwood, legal counsel for the National School Boards Association, who said officials in several districts across the country are watching what happens in Montgomery County. "I am not a Chicken Little, 'The sky is falling, the sky is falling' kind of person. But the sky is falling."
For board members, the case touches on such critical and race-sensitive issues as when and how to grant transfer requests, how to draw school boundaries, how students should be admitted to magnet schools and special programs and whether the county can even have them. For some, the appeal--which they estimate will cost $300,000--goes to the heart of their beliefs.
"I was marching in civil rights marches in the '60s. I lived in Memphis when Martin Luther King was assassinated, and I marched in his memorial march when National Guardsmen were pointing rifles at us," said board member Mona M. Signer (Rockville-Potomac). "Diversity is something that I believe in. I couldn't not pursue this case."
Montgomery County's high-stakes case began last year when Jeffrey Eisenberg wanted his son, Jacob, to attend first grade in the math and science magnet program at Rosemary Hills, a school for kindergartners and first- and second-graders.
County administrators and later the school board refused to let Jacob leave his neighborhood school, Glen Haven, because he is white.
Eisenberg sued and lost in U.S. District Court. But last month, the 4th U.S. Circuit Court of Appeals ruled that Jacob should be transferred to Rosemary Hills in Silver Spring, and struck down the board's policy governing transfers, calling it an "evil" system.
The system, designed to prevent schools from becoming racially isolated, tracks demographic trends over three years and does not allow students of a declining racial or ethnic population to transfer out of their schools. It also does not allow students to transfer to schools where the racial or ethnic mix differs from county averages.
For example, white students such as Jacob can't transfer out of Glen Haven, where the white population has fallen from 39 percent to 20 percent since 1994. And whites can't transfer into Wood Acres. Black students can't transfer out of Somerset and they can't get into Pine Crest.
With the 4th Circuit Court's decision, school board members are faced with devising an alternative system even as they appeal, or simply allowing schools to resegregate as housing patterns and neighborhoods become more segregated.
For example, new Superintendent Jerry D. Weast is circulating maps that show most blacks tend to live in Silver Spring and the eastern part of the county, where houses are more affordable. Most Hispanic students are concentrating in the central corridor, along the Metro's Red Line and where low-cost apartment complexes have sprung up. Neighborhood schools in those areas, without a policy to "racially balance" them, would quickly become minority-dominated schools.
School board member Beatrice B. Gordon (At Large) has said she fears that people will think the white schools are the good schools and the minority schools are the bad ones.
Still, increasingly conservative courts, including the Supreme Court, have consistently ruled that race can be used only to remedy past discrimination when school systems have been under court orders to desegregate. Districts without that history, such as Montgomery and Arlington counties, cannot.
Meanwhile, Jacob, now in second grade, remains at Glen Haven.