New York Law School

A Return to Segregated Education

The controversy surrounding social equalization and economic reparative measures such as affirmative action and other methods of achieving racial integration have been persistent areas of debate for countless decades. On June 28, 2007, in a ruling of much anticipation, the United States Supreme Court added more fuel to the already incendiary discourse. The cases Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Bd. of Education (consolidated as Parents Involved in Community Schools v. Seattle School District No.1) involved separate challenges by parents who argued that the positive and voluntary integration schemes of school districts, in Jefferson County, Kentucky and Seattle, Washington, violated their children’s rights. Prior to the ruling of the Supreme Court, the lower federal courts upheld the plans and many school districts across the country had similar plans in place to promote racial diversity. However, on the last day of Court’s term, the Supreme Court, in a fragmented opinion held that racial integration was not a compelling enough state interest to allow for the classifications of ones race ultimately to determine his/her entrance or conversely his/her denial of entry into specific public schools. Chief Justice Roberts, finishing out his first term on the bench, authored the ultimate opinion of the Court to which Justices Alito, Thomas, Scalia, and Kennedy joined. Roberts’s complete notion that race should never be used to attain diversity in public schools was not endorsed by all members of the majority, resulting in a non-binding plurality opinion written by Roberts. Justice Kennedy, the holdout of the majority bloc, wrote a lone concurring opinion that would allow for race to be considered in certain circumstance where the use of race is narrowly tailored to the state government’s interests.

The backgrounds of Jefferson County and the Seattle school districts are fairly different, but the purpose driving these districts to employ the programs at issue is the same. They sought to remedy various levels of underlying residential segregation rampant in their respective districts and to further racial diversity. Both school districts voluntarily adopted student assignment plans that utilized race as one of many factors determining which schools certain children could attend. In 1975, a federal court found that the Jefferson County school district had maintained a segregated school system and subsequently subjected the school district to a desegregation decree. In 2000, it was found that the school district had eliminated the remnants of its past segregation policy and in 2001, Jefferson County implemented a plan that classified students by their race and assigned students to particular schools. Unlike Jefferson County, the Seattle school district has never operated legally segregated schools nor had it been subject to any court ordered desegregation. Seattle chose to employ a diversity scheme as a means to end de facto segregation in the schools and provide students in the district with access to diverse and equal educational opportunities. Though Seattle uses race as a means to assign students to particular schools, the use of race is not an automatic mechanism. Race only comes into consideration when 1) a particular school is oversubscribed meaning that such school had been selected by an overabundance of incoming ninth graders as their first choice high school; 2) a sibling tie breaker has been instituted; in other words students who have a sibling attending the oversubscribed school is admitted and 3) the school is racially imbalanced. In other words the racial make up of the school differs by more than 15% from the racial make up of the students in the District as a whole.

To begin its analysis of the case at hand, the Court notes that in evaluating the use of racial classifications in a school context there are two issues that are recognized as compelling government interests thus allowing for such classifications to persist: (1) the use of racial classifications to remedy past intentional discrimination and (2) the use of racial classifications in order to promote diversity in higher education. Tackling the first concern, the Court found that neither the Seattle nor the Jefferson school districts needed to use racial classifications in any effort to remedy past intentional discrimination; Seattle’s school district was never legally segregated and though Jefferson County had been segregated by law, the District Court’s decree in 2000 noted that all vestiges of the past segregation policy was eliminated.

To address the second recognized interest, that of promotion of diversity in higher education, the Court focused heavily on its holding in Grutter v. Bollinger. The Court noted that in Grutter the compelling interest of promoting diversity was upheld because the admission scheme employed in Grutter viewed the diversity interest as not being focused on race. Instead, the scheme in Grutter took a more individualized approach to admission policies and “…consider[ed] a broad array of [the] qualifications and characteristics of [an applicant]…[of ]which racial or ethnic origin was a single… element. Though the Court praises the narrowly tailored approach of the admission scheme upheld in Grutter, the Court ultimately finds that as Grutter was only addressing institutions of higher education it did not govern the Seattle and Jefferson County controversy.

The Court is correct in distinguishing Grutter from the controversy in Parents v. Seattle. Although the narrow holding of Grutter does not apply, the spirit of Grutter can be seen in the integration schemes at issue in Parents. The school administrations in both sought to promote diversity and integration. Moreover, neither holds race as the sole factor in determining school assignment or admission. For example, in Seattle, factors such as geographic location and school oversubscription are taken into consideration along with race. In Jefferson County, prior to any consideration of a student’s race, factors such as place of residence, school capacity, and a random draw, are considered in school assignments.

To augment the decision that the race assignment plans in this case cannot be upheld, the Court asserts that the assignment schemes had a minimal effect on the school districts stated end, that of promoting racial and ethnic integration. In Seattle, the Court notes that only 84 were affected by the racial tiebreaker. In Jefferson County, the Court found similar results. Though the Court did not believe the effects of either race assignment scheme to be effective, the Court cautioned against the greater use of race to remedy the minimal impact of the current assignment plans. To emphasize the lack of impact that the districts plans had promoting racial diversity, the Court again looks to the decision in Grutter. The Court notes that the admission program instituted in Grutter tripled minority representation at the law school from 4 to 14.5 percent. The Court’s comparison to Grutter in this instance seems faulty and misplaced. The Court praises Grutter for focusing on an individualized scheme unlike the plan in Seattle, for example. Why then does the Court find it necessary to quantify the effect of the plan upheld in Grutter in numbers by stating that the admission program instituted in Grutter tripled minority representation at the law school from 4 to 14.5 percent, while making reference to the fact that the assignment schemes had a minimal quantitative effect on the school districts. It seems that although the Court discredited Seattle’s integration plan because it focused on promoting diversity through equalizing the white/nonwhite student ratio, diversity/integration is all that can be quantifiably measured. This is evident by the Court’s own insistence to quantify the results of the quality driven admission police in Grutter.

The plurality held no bars in explaining its disapproval of the integration schemes at issue. The plurality begins by attacking the substance of the plans and their goals. The plurality claimed that there was no evidence of educational benefits that can be gained through a white/non-white racial balance; however the plurality failed to explain or give any examples as to how else educational benefits of racial diversity could be achieved. The plurality went as far as to say that because the integration plans classify individuals as a part of a racial group, attempts to achieve racial balance are contrary to the “Constitution’s guarantee of equal protection … that the Government must treat citizens as individuals.” This principle, the plurality notes, can be found in Brown v. Board of Education, the landmark decision that declared school segregation unconstitutional. The plurality suggests that Brown was meant to cure educational segregation against individuals and not a particular racial group. If this is true, then we are forced to the absurd conclusion that Brown overrules itself because all integration mandates that Brown implicitly called for would be inherently unconstitutional. The question is: does Brown mandate integration or not. If it does, because integration cannot necessarily be achieved by attention to individuals alone, it is only possible to assure effective integration through attention to groups.

Justice Anthony Kennedy joined the opinion of the Court but filed a separate, narrow concurrence. Contrary to the majority Kennedy acknowledges that diversity is a compelling state interest as well as a persuasive educational goal. Believing that diversity is an attainable educational goal, Kennedy finds that the use of race conscious measures to assist in diversifying a school body is acceptable so long as such measures generally address the problem of limited diversity and are not to treat students different solely because of their race. Kennedy provides examples of appropriate measures including strategic sites for new schools or recruiting students and faculty in a targeted fashion.

Though Kennedy asserts that diversity is a compelling interest, he does not find that either school district in the present case meets the burden of establishing that their programs of achieving diversity are narrowly tailored to that interest. Jefferson County, Kennedy notes, provided only broad and imprecise terms as to when and how they employ individual racial classifications. These ambiguities, Kennedy finds, are problematic when there is a complex, comprehensive plan that contains strategies for achieving racially integrated schools. Regarding Seattle’s plan, Kennedy notes that this school district failed to explain why, in a district composed of diversity of races, it employed the racial categories of “white” and “non-white” as the basis for its assignment decisions. Seattle indicated that one of its goals was promoting the educational benefits of diverse school enrollments; however Kennedy does not find the distinction of solely “white”/”non-white” as furthering this goal. For example, a school with 50% Asian-American and 50%white students would qualify as balanced despite the absence of any Latino or African-American students. Therefore, Kennedy believes that Seattle’s plan defeats its own end of achieving diversity.

Kennedy’s concurrence provides a beacon of light (albeit narrow) to the dark path that the majority of the Court led us down: the return of (re)segregated public schools. The impact of the holding in this case has the great potential of affecting more than public school education. Racial classifications, amongst other factors, are utilized to determine eligibility for scholarships, educational grants, as well as the allotment of targeted endowments for educational institutions. If the holding of the Court is to be viewed as more than a mere mistake by the Court and a misapplication of precedent and ignoring United States history, the prospects of reversal are thin.

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