Supreme Court might bar race in school diversity plans
Justices indicate disfavor of strategy for integration
WASHINGTON -- The Supreme Court justices, hearing arguments on school integration, signaled yesterday 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 United States that use racial guidelines to maintain a semblance of classroom integration in cities whose neighborhoods are divided along racial lines.
However, it would be a major victory for those who have called for "color-blind" decision-making by public officials.
Yesterday's argument also might mark the emergence of a five-member majority on the court that may be determined to outlaw the official use of racial guidelines 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 universities. But that 5-to-4 decision depended on the 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 yesterday's debate suggested that a new majority would frown on race-based affirmative action.
At issue were the racial integration guidelines adopted by school boards in Seattle and Louisville, Ky. The two cases are Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education.
Seattle allows its students to choose which high school they want to attend but tries to maintain a racial balance within 10 percentage points of its overall enrollment. In 2001, before the program was suspended, 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 percent and 50 percent.
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.
The court will issue a ruling in several months.
School officials could not say how many districts use racial guidelines that could be affected by the court's ruling. But a ruling against such policies could put at risk many magnet school programs that use race as an admissions factor.
The justices who spoke during the argument all agreed that racial integration is a laudable goal. However, a narrow majority -- in comments, questions, and past decisions -- made clear their belief that the Constitution forbids shifting children from one school to another based on their race.
Until yesterday, 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 regularly had opposed race-based affirmative action.
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 might 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," Roberts replied. "But because they were assigned to those seats on the basis of race, it violated equal protection."
Roberts was referring to the 1954 decision in Brown v. Board of Education that rejected the "separate but equal" doctrine and struck down racial segregation.
Madden disputed this 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 this argument that the ends justified the means.
Achieving racial diversity "is certainly an admirable goal," Justice Antonin Scalia said. 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 yesterday, always has maintained that public officials cannot treat individuals differently because of their race.
If there was one hopeful sign for the proponents of school integration, 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 school board lawyer. "That is quite a different means. And it seems to be that should only be, if ever allowed, as a last resort."
The 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 said that in 1957, federal troops were sent to Little Rock, Ark., to desegregate the schools over the objections of local officials. 