Justices question school policies

The Supreme Court justices, hearing arguments on school integration, signaled Monday that they are likely to bar the use of race when assigning students to public schools.

Such a ruling could deal a blow to hundreds of school systems across the nation that use racial guidelines to maintain a semblance of classroom integration in cities where neighborhoods are divided along racial lines.

However, it would be a major victory for those who have called for “colorblind” decision-making by public officials.

Monday’s argument also may well mark the emergence of a five-member majority determined to outlaw the official use of race in schools, colleges and public agencies.

“The purpose of the Equal Protection clause is to ensure that people are treated as individuals rather than based on the color of their skin,” Chief Justice John G. Roberts. Jr. said.

Three years ago, the court upheld affirmative action at colleges and universities. But that 5-4 decision depended on now-retired Justice Sandra Day O’Connor. Since then, President Bush’s two appointees -- Roberts and Justice Samuel A. Alito Jr. -- have joined the court, and the tenor of Monday’s debate suggested a new majority would frown on race-based affirmative action if the issue were to return.

At issue Monday were the racial-integration guidelines adopted by school boards in Seattle and Louisville, Ky.

Seattle had allowed its students to choose which high school they wanted to attend, but tried to maintain a racial balance within 10 percentage points of the district’s overall enrollment. Before the program was suspended in 2001, 210 white students and 90 minorities were denied their first choice of a high school.

The Louisville schools seek to keep black enrollment between 15% and 50%.

Both policies were challenged by parents of a small number of students, most of them white, who were denied their first-choice school because of their race. Bush administration lawyers joined the cases on the side of the parents.

Officials could not say how many districts use racial guidelines that might be affected by the court’s ruling. But a ruling against such policies could jeopardize many magnet-school programs nationwide that use race as an admissions factor, including the one in Los Angeles Unified School District.

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Outlook for LAUSD

About 54,000 LAUSD students are enrolled in magnet schools, and the district says “openings are determined by the need to maintain a racially balanced enrollment.” The district’s lawyers concede that a high court ruling striking down integration guidelines in Seattle and Louisville would put the Los Angeles program “at risk.”

The justices who spoke during Monday’s argument all agreed racial integration is a laudable goal. But a narrow majority of them -- in comments, questions and past decisions -- made clear their belief that the Constitution forbids shifting children from one school to another based on race.

Until Monday, civil rights lawyers held out the faint hope that Justice Anthony M. Kennedy, a centrist, might vote to uphold local school integration plans, even though he had regularly opposed race-based affirmative action in the past.

But Kennedy quickly dashed those hopes.

He told a lawyer for the Seattle school board that “outright racial balancing ... is patently unconstitutional. And that seems to be what you have here.” Agreeing with Kennedy, Roberts noted that the districts were making decisions on assigning students to schools “based on skin color and not any other factor.”

No students are excluded from school because of their race, responded Michael F. Madden, the school board’s lawyer. They may be assigned to a “different [but] basically a comparable school.”

“How is that different from the ‘separate-but-equal’ argument? ... Everyone got a seat in Brown as well,” replied Roberts. “But because they were assigned to those seats on the basis of race, it violated equal protection.”

Roberts was referring to the landmark 1954 decision in Brown vs. Board of Education that rejected the “separate but equal” doctrine and struck down racial segregation.

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‘Segregation is harmful’

Madden disputed the comparison between forced segregation and voluntary integration. “Segregation is harmful” to students, while diversity and integration “have benefits” for black and white children, he said.

But the conservative justices did not seem swayed by the argument that the ends justified the means.

Achieving racial diversity “is certainly an admirable goal,” said Justice Antonin Scalia. But he added, “Even if the objective is OK, you cannot achieve it by any means whatsoever.... I thought one of the absolute restrictions [in the Constitution] is that you cannot judge and classify people on the basis of their race.”

Alito also skeptically questioned the school lawyers, and Justice Clarence Thomas, though he said nothing Monday, has always insisted public officials may not treat individuals differently because of their race.

If there was one hopeful sign Monday for the proponents of the schools’ programs, it came when Kennedy said school officials were free to pursue racial integration as a goal. For example, a school system could locate a new school between a white and black neighborhood so as to achieve diversity, he said. School officials also could use special programs or magnet schools to draw a mix of black and white students, he said.

By contrast, “you’re characterizing each student by reason of the color of his or her skin,” Kennedy told one of the school board lawyers. “That is quite a different means. And it seems to be that should only be, if ever allowed, as a last resort.”

The court’s four liberal justices, sounding frustrated by their colleagues, defended the school integration policies. They wondered how the Supreme Court could reverse course from demanding desegregation in decades past to now, possibly, blocking it.

Justice Stephen G. Breyer noted that, in 1957, federal troops were sent to Little Rock, Ark., to desegregate the schools over the objections of local officials.

“The society was divided. Here we have a society, black and white, who elect school board members who together have voted to have this form of integration,” Breyer said. “Given that change in society, which is a good one, how can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the children out of the school?”

U.S. Solicitor General Paul D. Clement was unmoved. “I think the answer is that the lesson of history in this area is that racial classifications are not one where we should just let local school board officials do what they think is right,” he said.

The court will issue a ruling in several months on Parents Involved in Community Schools vs. Seattle School District No. 1 and Meredith vs. Jefferson County Board of Education.

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david.savage@latimes.com