The Bush administration has urged the Supreme Court to strike down voluntary school integration programs across the nation that exclude some students because of their race.
Administration lawyers filed briefs this week in pending cases from Seattle and Louisville, Ky., on the side of white parents who are challenging “racial balancing” programs as unconstitutional.
The parents say the integration guidelines amount to racial discrimination and violate the Constitution’s guarantee of the equal protection of the laws. They lost in the lower courts, but the Supreme Court will hear their appeals in the fall.
In the briefs, U.S. Solicitor General Paul D. Clement urged the justices to rule that “the use of a racial classification to achieve a desired racial balance in public schools” is just as unconstitutional as old-fashioned racial segregation.
Louisville, which had a history of segregated schools, adopted integration guidelines in 2001 that said the black enrollment in each elementary school should be at least 15% but no more than 50%. In Meredith vs. Jefferson County, Crystal Meredith, a white parent, sued when her son was prohibited from attending the elementary school nearest to his home.
The Seattle school board adopted integration guidelines for its high schools, beginning with the 1998-99 school year. Officials said they hoped to preserve racial diversity in the schools and prevent segregation that mirrored the racially segregated housing patterns in the city.
In the case of Parents Involved in Community Schools vs. Seattle schools, a group of parents sued to challenge the guidelines after their children were denied enrollment in their first choice of a high school because of their race or ethnicity.
As many as 1,000 school districts nationwide -- including the Los Angeles Unified School District -- are integrating some of their schools by using race or ethnicity as a factor for enrollment, according to Sharon L. Browne, a lawyer for the Pacific Legal Foundation in Sacramento. That organization filed suit in October against the Los Angeles district in state court, contending that it had violated Proposition 209, the 1996 statewide initiative that prohibits public programs from using racial preferences.
Next month, lawyers for the Louisville and Seattle school districts, as well as civil rights advocates will file briefs defending the integration guidelines. The justices are expected to hear oral arguments in December.
In the briefs filed this week, Clement urged the high court to resolve a lingering dispute over the meaning of the court’s landmark decision in Brown vs. Board of Education. That 1954 ruling struck down racial segregation laws that prevailed in the South and parts of the Midwest and declared that segregated schools are “inherently unequal.”
For decades afterward, school districts across the nation adopted policies to bring about racial integration: Some set enrollment guidelines that prevented schools from becoming nearly all black or all white, while others have used magnet programs that consider a student’s race. Many of those policies remain in effect.
Los Angeles Unified considers race as one of the factors for enrollment in its 162 magnet programs, which use specialized curricula to draw a racially and ethnically diverse student body from across the city. When the program was created almost three decades ago, nearly 40% of the district’s students were white, about one-third Latino and one-quarter black.
Today, fewer than one in 10 Los Angeles Unified students is white, and 30% to 40% of magnet seats are reserved for white children.
Clement, the Bush administration’s chief lawyer before the high court, said such programs should be struck down whenever they involve the use of a “racial classification” to decide who may enroll.
“The promise of this court’s landmark Brown [decision] was to ‘effectuate a transition to a racially non-discriminatory school system,’ ” he wrote. “The United States remains deeply committed to that objective. But once the effects of past de jure [legal] segregation have been remedied, the path forward does not involve new instances of de jure discrimination.”
His argument is likely to get a favorable hearing from Chief Justice John G. Roberts Jr. and his conservative colleagues.
“It’s a sordid business, this divvying us up by race,” Roberts commented in June when the court ruled on a voting-rights dispute from Texas. The court majority said Texas had violated the Voting Rights Act by shifting Latino voters out of a congressional district where they were nearing a majority, but Roberts expressed his dismay with the law’s focus on the race and ethnicity of the voters.
In the past, Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy have regularly voted to strike down contracting set-asides or affirmative-action programs that give preferences to minorities.
Three years ago, they dissented when the high court, in a 5-4 decision, upheld the affirmative-action policy at the University of Michigan law school. Justice Sandra Day O’Connor wrote the majority opinion.
The replacement of O’Connor, who retired last year, with Justice Samuel A. Alito Jr. could tip the court’s balance on affirmation action as well as on voluntary school integration. During his days as a Reagan administration lawyer, Alito said he was especially proud of his work on cases that challenged “racial quotas.”
The solicitor general defends federal agencies and federal laws when they come under challenge in the high court. He also may intervene in cases, even if no federal law is at issue, to express the views of the administration. In the school integration cases, the solicitor general could have intervened on the side of the school districts or on the parents’ side.
Clement argued that the government, including public schools, may use “race-based measures” only to “eliminate the vestiges of past discrimination.”
Since neither Seattle nor Louisville defend their policies as a remedy for past discrimination, they may not use “race-based assignments” simply to achieve integration, he said.
His brief sidesteps the issue of affirmative action in higher education. Referring to the University of Michigan case, he said the court had permitted “the limited consideration of race to attain a genuinely diverse student body, including a critical mass of minority students, at universities and graduate schools. That interest is not implicated here,” he wrote.
Times staff writer Howard Blume in Los Angeles contributed to this report.