Schools Cast About for New Diversity Plans

Support for diversity in public education is still strong, they say, even though both plans were ruled unconstitutional. Meanwhile, educators and parents on either side of last week’s ruling in Parents Involved in Community Schools v. Seattle School District, No. 05-908, will be searching for ways to comply.

“Primary and secondary schools will need to do something very similar to what colleges and universities do—use race, but use it as one factor among a host of many other factors,” says Aderson Bellegarde Francois, a professor at Washington, D.C.’s Howard University School of Law. He’s also director of the school’s Civil Rights Clinic, and submitted an amicus brief on its behalf, supporting the school districts.

Although Chief Justice John G. Roberts Jr. authored the plurality opinion striking down the plans, Justice Anthony M. Kennedy’s concurrence will likely have the strongest role in future student admission plans.

Kennedy described the plans as “sweeping race-based classifications,” but he would not join the balance of Roberts’ opinion, which holds that the country should aspire to being a “color-blind” society, ignoring race entirely.

“The enduring hope is that race should not matter;” Kennedy wrote. “The reality is that too often, it does.”

The opinion involves two school districts: Seattle, which at one point used race as a tiebreaker when determining high school admissions, and Jefferson County, Ky., including Louisville, which sometimes considered race when making kindergarten, first-grade and transfer assignments. Neither plan was narrowly tailored enough to achieve diversity, the court ruled.

In his concurrence, Kennedy detailed alternative plans, such as drawing attendance zones that recognize neighborhood demographics, recruiting students and faculty in a targeted fashion and tracking enrollments and performance by race. Such methods, Kennedy wrote, are race-conscious, but don’t lead to differential treatment based on race classifications.

“The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race,” he said.

A dissent by Justice Stephen G. Breyer, holding that the plurality paid inadequate attention to prior cases, was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

If a school admission system that follows Kennedy’s examples is challenged in the Supreme Court, many say, it’s likely that such a plan would get the five votes needed to be deemed constitutional.

“I think if you have a plan that puts race as one of a mix of many factors, you may have an ability to swing Kennedy over,” says John K. Bush, a partner at Louisville’s Greenbaum, Doll & McDonald. He submitted an amicus brief for the Louisville Area Chamber of Commerce, in support of the Jefferson County School District.

The plurality, Bush notes, leaves in place Grutter v. Bollinger, 539 U.S. 306, the 2003 ruling that found race could be used in higher education admissions, providing it was done to further an interest of obtaining the educational benefits of a diverse student body.

Rachel D. Godsil, who submitted an amicus brief on behalf of the National Parent Teacher Association supporting the school districts, agrees.

“Kennedy’s inviting the community to come together and think creatively about how to [have diversity], without using student assignment plans,” says Godsil, a law professor at Seton Hall University School of Law in Newark, N.J. “There’s a suggestion that there may be a way to turn this opinion into something important, by inviting people to come together and talk about how we can achieve this laudable goal.”

Others weren’t so sure Kennedy would endorse future admission plans that consider race.

“His record on this issue is that he’s pretty skeptical,” says Goodwin Liu, a professor at University of California at Berkeley’s Boalt Hall. He submitted an amicus brief supporting the school districts, on behalf of former University of California chancellors.

“I think Kennedy is struggling with the issue,” says Liu, adding that Kennedy’s opinion drew a distinction between classifying individual students based on race, and plans that are race-conscious in a general fashion.

“If you’re going to classify kids individually based on race, you have to do a very good job of documenting how you considered all other alternatives,” Liu says.

Teddy B. Gordon, a Louisville lawyer, represents Crystal D. Meredith, the parent challenging the county’s school admission plan. According to Gordon, the opinion eliminates the use of any racial classifications.

“We’re no longer going to have to code our kids,” he says. “It was a logical progression.”

To diversify public education, Gordon favors the use of neighborhood schools, or programs he refers to as traditional schools, where students and parents must follow a conduct code.

“If you put traditional schools in there, you’ll get more fair, across-the-board applications, from all diversities in Louisville,” he says.

Others mention admission plans based on students’ socioeconomic status. According to some, such plans work well, while others support the consideration of socioeconomic status and race used together in student admission plans. There are criticisms of this as well.

“Twenty years ago, Seattle actually experimented with using socioeconomic status in school admissions and ended up with a system that was more segregated than what they started with,” Francois says.

And some predict that some schools would not want to experiment with student assignment plans, because they don’t want to risk litigation.

Michael E. Rosman, general counsel of Washington D.C.’s Center for Individual Rights, submitted an amicus brief on behalf of his organization, challenging both admission plans in question. Neither changed enrollment much, he says, which is why the plurality was not persuaded of either’s importance.

“If you have real racial isolation, say a school is 80 to 90 percent all one race, a school is probably likely to find some social scientific justification for reducing that kind of extreme racial isolation,” Rosman says. “I think it’s much harder to defend a program that says 22 percent white in a given school is racially isolated, but 27 percent isn’t. Particularly if the other 88 or 83 percent is not all one race.”

Michael F. Madden, a partner at Seattle’s Bennett, Bigelow & Leedom, represents the school district there. He says the district, which scrapped the plan in 2002 after litigation, will try to find other ways to ensure a diverse public school system. Madden has been thinking of alternatives, but declined to elaborate.

“There’s going to be a lot of ink spilled on that,” he says. “I think you’re going to find that school boards with assignment plans using race or a racial purpose are going to take a look at what they’re doing and try to access their legal risk.”


©2007 ABA Journal


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