The U.S. Supreme Court declined an opportunity last week to rule on the constitutionality of a school district鈥檚 policy of weighing race as a factor in assigning students to schools. It has sidestepped a potentially thorny sequel to its 2003 rulings on affirmative action in higher education and left several lower-court rulings as the best available road map for districts that want to promote racial diversity with minimal legal risks.
The court on Dec. 5 refused to hear an appeal in Comfort v. Lynn School Committee (Case No. 05-348), a lawsuit involving a challenge by parents to a Massachusetts school district鈥檚 voluntary integration program. It was the first of several chances the justices may have in their 2005-06 term to examine districts鈥� voluntary consideration of race.
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Although it is not clear how many districts have adopted voluntary integration plans, some are in districts that have been released from court-ordered desegregation plans and have since adopted voluntary plans. In September, the U.S. Department of Justice reported that 328 districts nationwide were operating under court-supervised desegregation plans to which the U.S. government is a party.
Some districts that have adopted voluntary plans, including Lynn, have never had court-supervised desegregation plans.
Two other cases likely to be appealed to the Supreme Court involve voluntary student-assignment plans in the Jefferson County, Ky., school district, which was once under a court-ordered desegregation plan, and the Seattle school system, which for 21 years had a voluntary busing plan to desegregate its schools, phasing it out by 1999.
As is customary, the Supreme Court gave no reason for its unanimous denial of the Massachusetts appeal, and its action was not a ruling on the legal merits of the Lynn district鈥檚 plan. The justices let stand a 3-2 decision from July by the full U.S. Court of Appeals for the 1st Circuit, in Boston, that upheld the district鈥檚 plan.
Still, supporters of the district鈥檚 plan viewed the court鈥檚 refusal to review the case as a positive development. 鈥淚 think school districts should feel increasingly comfortable with their ability and authority to consider race for purposes of promoting integration,鈥� said Chinh Quang Le, an assistant counsel for the NAACP Legal Defense and Educational Fund Inc. in New York City. The civil rights organization filed a friend-of-the-court brief in the case at the appeals court level on the side of the Lynn district.
Three federal appeals courts have considered voluntary race-based school district programs in light of two important Supreme Court decisions from 2003 that dealt with consideration of race in higher education admissions.
In Grutter v. Bollinger, the high court broadly reiterated its approval of affirmative action in education under the proper circumstances and upheld an admissions policy at the University of Michigan law school that took race into account. In Gratz v. Bollinger, the court struck down Michigan鈥檚 undergraduate admissions policy because it automatically gave bonus points to members of certain underrepresented minority groups.
鈥楴arrowly Tailored鈥�
The appellate courts in the three legal tests applied both decisions on university admissions plans, though chiefly Grutter, to public K-12 schools.
In the case involving the 15,000-student Lynn district, the 1st Circuit court concluded that the Michigan law school鈥檚 goal of reaping what the court called 鈥渃ritical鈥� educational benefits from racial diversity in its admissions was similar to the school district鈥檚 goal of seeking 鈥渆ducational benefits that flow from a racially diverse student body in each of Lynn鈥檚 public schools and avoiding the negative educational consequences that accompany racial isolation.鈥�
In the majority opinion, U.S. Circuit Judge Kermit V. Lipez said of the Lynn plan, 鈥渂y reducing racial isolation and increasing intergroup contact, it has ameliorated racial and ethnic tension and bred interracial tolerance.鈥�
Those benefits, he said, allowed the court to overlook the fact that race ultimately was 鈥渁 decisive factor鈥� in the assignment plan.
But in his dissent, Judge Bruce M. Selya said that in Grutter and Gratz, 鈥渢he [Supreme] Court made it crystal clear that a race-conscious admissions program must use race in a flexible, non-mechanical way if it is to be considered narrowly tailored.鈥�
A Colorblind System?
In the Kentucky case, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously upheld the district鈥檚 assignment plan. The court relied on the analysis of a federal judge in Louisville, Ky., who had upheld the 95,000-student school district鈥檚 plan in 2004 because it did not unduly harm members of any racial group.
U.S. District Judge John G. Heyburn II said that the district鈥檚 plan was using race in a limited way to achieve benefits for all students through its integrated schools.
In the Seattle case, the full U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled 7-4 on Oct. 20 that the 46,000-student district鈥檚 use of race as a tiebreaker when deciding which students to admit to high schools was narrowly tailored to meet the school district鈥檚 compelling interests.
In the majority opinion, U.S. Circuit Judge Raymond C. Fisher said that the school district had 鈥渕ade a good faith effort鈥� to consider race-neutral alternatives to achieve desegregated schools, before choosing the assignment plan that includes a race-based tiebreaker. He noted that the district over many years had tried alternatives, including magnet and other special interest programs, and race-conscious districting.
鈥淏ut when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution,鈥� Judge Fisher wrote. The Seattle and Jefferson County decisions are both expected to be appealed to the Supreme Court later this term.
Sharon L. Browne, a lawyer with the Pacific Legal Foundation in Sacramento, Calif., which filed a brief in support of the Lynn parents鈥� case in the 1st Circuit, said that the three appellate decisions support 鈥渁 trend, and I think it is a very sad trend,鈥� toward using race in student assignment. She said that by allowing districts to consider race in assigning students, 鈥渨e are teaching our children in public education that race matters, unless we [are to] have a colorblind education system.鈥�
Thomas Hutton, a lawyer with the National School Boards Association, said that it is unlikely that the winning streak in the federal appeals courts for voluntary integration plans would stretch to all the appellate circuits.
鈥淚n one of these cases, we may get to point where an appellate court somewhere disagrees,鈥� he said. 鈥淲hen that happens, it becomes [more likely that] the Supreme Court weighs in to resolve the split in the circuits.鈥�
