Court to Revisit Race in Schools

The Supreme Court agreed Monday to take up two cases that could mark a historic shift in the role of race in education and spell the end of official efforts to integrate the nation’s public schools.

The justices said they would hear appeals from parents in Seattle and Louisville, Ky., who say it is unconstitutional for officials to consider race when deciding which school a student will attend.

The cities adopted voluntary integration programs in recent years that put limits on how many white or black students may be enrolled in some schools.

The Seattle and Louisville cases could put the court on the opposite side of an old issue. Having told school officials in the landmark 1954 Brown vs. Board of Education ruling that they must desegregate their classrooms, the high court will now consider whether the Constitution forbids official efforts to maintain integration.

A ruling outlawing such efforts would have a wide effect on schools that continue to use race even after desegregation orders have expired.

The Los Angeles Unified School District uses magnet schools to achieve integration, but it does so partly by enrolling students based on their race or ethnicity.

Just three years ago, the court upheld affirmative action in colleges and universities, but two new conservative justices have joined the court since then. Monday’s announcement is the second this year that could indicate a shift to the right in a major area of law. The court agreed to hear a case this fall that will determine whether Congress can outlaw a late-term abortion procedure.

Beginning with the Reagan era of the 1980s, conservatives have insisted it is unconstitutional for the government to use a person’s race as a factor in hiring, awarding contracts, admitting college students, or, in this instance, assigning students to public schools.

In 2003, however, the Supreme Court dealt conservatives a defeat in a University of Michigan law school case. The court, in a 5-4 decision, said higher education had a “compelling” need to consider a student’s race if it was to maintain diversity in classes.

That decision was written by Justice Sandra Day O’Connor, who retired in February.

Her replacement, Justice Samuel A. Alito Jr., is seen as likely to take a more conservative stand on race and affirmative action. In 1985, as a lawyer in President Reagan’s Justice Department, he said he was “particularly proud” of the administration’s efforts to persuade the Supreme Court that “racial and ethnic quotas should not be allowed.”

Chief Justice John G. Roberts Jr., who also worked in the Reagan administration, wrote memos that criticized the overt consideration of race by the government.

Lawyers for the parents in the school cases say a student’s race or ethnicity should not affect their chances of attending a school.

“The issue here is: Can public schools voluntarily discriminate among students to achieve racial balance?” said Sharon L. Browne, a lawyer for the Pacific Legal Foundation in Sacramento, which had urged the court to hear both cases. “They are teaching our kids that race still matters. If they can continue to do that, we will never get to a place where the country is colorblind.”

She said as many 1,000 school districts nationwide seek to integrate some schools by enrolling or not enrolling students based on their race. Last year, her group sued the Los Angeles Unified School District in state court, contending its magnet school program is unconstitutional because it seeks “a racially balanced enrollment.”

Seattle has 10 high schools, and it allows students to choose which one they want to attend. The district’s integration plan calls for trying to maintain a racial balance in each high school that is within 10 percentage points of its overall enrollment, which is 60% minority and 40% white. But if too many students choose a certain school and it is “over-subscribed,” officials put limits on who may enroll. One factor they consider is race.

In 2001, for example, 300 students were denied their first choice of a high school because of their race. Of these, 210 were white and 90 were minorities. The minorities include students who are black, Latino, Asian and Native American.

The Seattle plan has been tied up in litigation for years. In October, the U.S. 9th Circuit Court of Appeals upheld the plan on a 7-4 vote and applauded the school system for achieving “racial diversity” despite the city’s segregated housing patterns.

Harry Korrell, a lawyer for the Seattle parents, insisted the city was not segregated. “This is becoming a very diverse city. Even the whitest neighborhoods are integrated,” he said. Because of this natural integration, he said, the racial balancing plan is not needed.

He said he hoped the high court would say that “absent a history of past discrimination, it is impermissible to use race in making government decisions.”

Louisville had a history of official racial segregation. In 1975 it was ordered to bus students to achieve desegregation, but that court order ended in 2000.

A year later it adopted a voluntary integration plan that seeks a black enrollment of at least 15% and no more than 50% in each school. Crystal Meredith, a white parent, challenged the plan, charging that it violated her son’s rights; he was blocked from attending his neighborhood elementary school because it had too many white students.

But a federal judge and the U.S. appeals court in Cincinnati upheld the integration plan, based in part on O’Connor’s opinion in the law school case.

The Supreme Court said it would hear both cases, Parents Involved in Community Schools vs. Seattle School District and Meredith vs. Jefferson County Board of Education, in the fall.

The cases are likely to attract unusual attention because of the Supreme Court’s historic role in ending school segregation.

After declaring segregation unconstitutional in Brown vs. Board of Education, the court said school officials should proceed “with all deliberate speed” to end segregation.

Many chose to be deliberate, but not speedy.

In 1968, the court said it would wait no longer for schools to achieve real desegregation, and by the early 1970s, many school systems were under federal court orders to bus students across town to achieve desegregation.

That effort met strong public resistance nearly everywhere it was tried. In one Reagan-era memo, Roberts referred to busing for desegregation as a “failed experiment.”

“We’re glad the Supreme Court is taking an opportunity to clarify for school districts the issues around diversity and school attendance. Right now, there is a lot of uncertainty,” said Francisco Negron, counsel for the National School Boards Assn.

The school cases join another that could reveal a shift to the right by the high court.

In late February, the same week that Alito took his seat as O’Connor’s replacement, the court agreed to hear a case that could revive the federal law forbidding the abortion procedure known as intact dilation and extraction -- which opponents label “partial-birth” abortion -- performed during the second trimester of a pregnancy. That law was struck down by a lower court based on a 5-4 Supreme Court ruling, joined by O’Connor, which said the ban on this surgical method could threaten the health of some women seeking an abortion.