THE SUPREME Court in recent years has steadily narrowed the circumstances in which race can be taken into account by public entities, particularly in making employment, admissions and other such gateway decisions. It's still possible to do so, but only in limited ways that make no more use of race than is necessary to serve compelling public interests. Those terms leave the lower courts some discretion; the 4th U.S. Circuit Court of Appeals, whose jurisdiction includes Virginia and Maryland, has chosen for what seem doctrinal not to say activist reasons to interpret them narrowly. The Montgomery County school board has become the second in the area -- Arlington was first -- to run afoul of that interpretation.
Most children in Montgomery County go to schools in or nearest to their neighborhoods. Enrollment in those schools reflects residential patterns, which means that the schools, like the county, are racially, economically and otherwise divided. In part to overcome those divisions, the county maintains magnet schools meant to draw children from diverse neighborhoods.
To keep the magnets from intensifying the divisions they are intended to reduce, the Montgomery system polices who can get in. A white first-grader was denied a transfer to a magnet school because his neighborhood school already was losing whites, and the rules are written to prevent transfers in such cases. His parents sued, on grounds that he was denied an opportunity purely on the basis of race. The school board won at the district court level; the district judge found that the policy was properly tailored to serve a compelling interest. The 4th Circuit reversed. Montgomery officials are trying to decide what to do.
Our sense is that they ought to redesign what may have been too mechanistic a plan and persevere. There is only so much the schools can do to overcome segregation in society at large -- and in Montgomery County, as elsewhere, there is a good deal more that housing, zoning and other agencies of government could usefully do to help. But the school system's goal is an infinitely worthy one.
The courts are uneasy with plans such as this in which decisions are explicitly based on race alone. There's some cause for such unease; they don't want to sanction, or seem to be sanctioning, without restraint precisely the kinds of discrimination based on race that the whole exercise is meant to defeat. The answer lies in blur. Have race be one of many factors taken into account, use proxies for race, such as neighborhood or income. The county can do that and quite likely survive a further legal challenge. Nor is it dishonest.
This society can't pretend yet to be colorblind. A strong case can still be made that a public agency should take race benignly into account in making decisions such as these. It ought to be a factor, just not the stark and only factor. The county can find a way.