Back to the Supreme Court: racial balance in schools

America is one of the most racially and ethnically diverse countries in the world. Yet 52 years after Brown v. Board of Education – the landmark Supreme Court decision that struck down segregation – US classrooms are growing increasingly segregated.

In part, the racial divide reflects the persistence of segregated housing patterns and the stifling grip of poverty. But it also reflects national disagreement and confusion over how best to address the issue of race.

Monday, the US Supreme Court takes up two cases that confront the heated debate over race. On one side are those who believe affirmative action and other race-conscious programs are necessary to fight the effects of discrimination and inequality. On the other side are those who believe the Constitution mandates a colorblind approach to race relations – that government programs granting benefits based on a person's race are just as illegal as withholding benefits because of a person's skin color.

At issue in the two cases are race-based student enrollment plans at public school districts in Seattle and in Louisville, Ky. Both plans were designed by the local school boards to voluntarily achieve racial integration to provide a diverse learning environment for the benefit of all students. Both plans are under attack by local parents who say the use of race to maintain a racial balance amounts to an unconstitutional form of government discrimination.

The cases confront fundamental issues that stretch back to 1954, when the high court ruled in the Brown case that racial segregation violates the constitutional principle of equal protection.

"This is about what is left, if anything, of Brown v. Board of Education," Theodore Shaw, president of the NAACP Legal Defense and Educational Fund, said in a recent debate hosted by the Century Foundation. If the high court strikes down the Seattle and Louisville programs, "it will be a reversal of historic proportions," he said.

The Brown decision is also the starting point for those challenging the plans, including the Bush administration. But they draw a different lesson from the landmark case.

"In Brown v. Board of Education the court held that intentionally classifying students on the basis of race violates the equal protection clause, and declared the ultimate objective ... to be achieving a system of determining admission to the public schools on a nonracial basis," writes Solicitor General Paul Clement in his brief to the court.

The Supreme Court last considered a similar issue in a 2003 case over race-based admissions procedures at the University of Michigan Law School. The court split 5 to 4, with then-Justice Sandra Day O'Connor casting the deciding vote upholding the affirmative-action plan as a means to bring racial diversity to the elite law school.

Justice O'Connor's retirement earlier this year opens the door for a possible shift at the high court, with Justice Anthony Kennedy now potentially in position to cast the deciding vote in the Seattle and Louisville cases, legal analysts say. Justice Kennedy dissented in the Michigan Law School case and was sharply critical of what he said was an overly permissive standard of review used by O'Connor.

"Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race- neutral alternatives," Kennedy wrote.

The enrollment plans under challenge in Louisville and Seattle are similar in that they are both attempts to address de facto segregation tied in part to housing patterns. The voluntary desegregation programs are aimed at preventing the school districts from sliding into a starkly segregated environment with minority students isolated in inner-city schools and white students isolated in suburban schools.

To achieve a meaningful mix, both school boards decided they would have to use race as a factor in deciding which students should attend particular schools.

In Seattle, the school board set student enrollment at the district's most popular high schools within 15 percentage points of the overall racial balance of the district's students. The balance was 40 percent white and 60 percent nonwhite.

Students were permitted to apply to attend any of the district's 10 high schools. But because some schools were more popular than others, the board created a racial tiebreaker to determine eligibility at the most popular schools.

If a new student would cause that particular school's white or nonwhite student population to increase above the 55 percent cutoff, the student was barred from attending that school. In the plan's first year, more than 300 white students were denied admission to their preferred school because of their skin color. Thirty students left the public school system rather than attend their assigned school.

Parents who oppose the plan say Seattle schools are already diverse and that the race tiebreaker is an attempt to achieve unconstitutional racial balancing.

Lawyers for the school board counter that the desire to integrate public schools is not the constitutional equivalent of seeking to maintain a segregated system.

Supporters say the Seattle plan is consistent with the promise made by the high court in Brown v. Board of Education. There is a fundamental difference between using race to segregate students and using it to integrate them, they say.

The same debate is under way in Louisville. There, the Jefferson County School Board established a broad goal that each of the district's schools should have black student enrollment set between 15 percent and 50 percent of the school's total enrollment. African-American enrollment districtwide is about 35 percent. It is up to school administrators to determine the exact racial mix at each school.

The program is aimed at encouraging students to attend schools outside their own neighborhood, but flexibility is the key to the Jefferson County plan. It seeks to offer options for those parents who want their children to attend school close to home, yet it also seeks to achieve meaningful diversity in every school throughout the district.

The impact of being denied admission to a particular school for racial reasons is cushioned by an approach that urges parents – both black and white – to work with district officials to identify acceptable alternative schools. "You just keep working the process through with parents," says Pat Todd, director of the Jefferson County Schools student assignment plan.

"I don't mean to tell you it works perfectly. I have [some] dissatisfied parents. It is controversial. It is imperfect," Ms. Todd says. But in a broad way, the program is a microcosm of how democracy works, she says. "It is not about perfection. It is about managing the imperfections to people's greatest level of satisfaction. That is what this process is all about."

Not all schools in the Jefferson County system use race as a deciding factor. A federal judge has ordered that four schools offering unique educational programs cannot use race in selecting students – including Louisville's historically black Central High School. Since the judge's ruling six years ago in a case brought by African-American students, black enrollment at Central has risen steadily and now stands at 83 percent.

In addition, districtwide "traditional" schools use a random computer-drawn list to decide who attends those schools.

Todd says she and her staff work to ensure that the proportion of black applicants to white applicants at traditional schools reflects the districtwide goal for black enrollment. That is done in the hope that the random draw will subsequently reflect the desired black-white mix, Todd says.

A similar random draw would not work at the elementary school level, Todd says. It would eliminate the flexibility to allow dissatisfied parents to choose a second, or third, or fourth school option. It is that follow-up effort that helps blunt the impact of being denied admission to a first-choice school because of a student's race.

Todd says although the district uses some race-neutral alternatives, meaningful integration requires using race. "I don't think we can keep our school desegregated over time without the yardstick and vision of some racial guidelines," she says.

Others disagree. The school district's approach "denigrates a 5-year-old's self-worth and self-esteem by comporting him to be color coded throughout his educational career," says Teddy Gordon, who represents Crystal Meredith, a mother who is challenging the Louisville plan.

Mr. Gordon says in his brief that the school district may only use a race-conscious plan to remedy intentional discrimination. Anything else is unconstitutional racial balancing, he says.

The school district's lawyer, Francis Mellen, says that since all schools in Louisville receive similar funding and offer similar programs, students are not deprived of a benefit when they are denied enrollment in their chosen school.

"The student has not been denied an education, only a choice," Mr. Mellen says.

Decisions in the two cases – Parents Involved in Community Schools v. Seattle School District No. 1 and Crystal Meredith v. Jefferson County Board of Education – are expected by the end of the court's term next summer.