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The Supreme Court on Monday agreed to use cases from Seattle and Louisville, Ky., to re-enter the contentious debate over affirmative action. Three years after the Court upheld race-conscious admission policies in higher education in the Grutter v. Bollinger decision, the new cases will test whether that precedent carries over into the different setting of public elementary and high schools. “This is the occasion to see how far Grutter can go,” said John Payton, a partner at WilmerHale, part of the legal team that won Grutter, which upheld admission policies at the University of Michigan Law School. Adding uncertainty to the new review of race-conscious public-education policies is the fact that Justice Samuel Alito Jr. has replaced Sandra Day O’Connor, who was a crucial vote in favor of affirmative action and the author of the Grutter ruling. During Alito’s confirmation hearings, some civil rights groups concluded from his record that Alito would be a strong opponent of affirmative action programs. “This will be a major test for the Roberts Court,” said Pepperdine University School of Law professor Douglas Kmiec, who argues that Grutter should not be extended to pre-college public schools. “We are excited about the possibility that the Court may limit Grutter to its facts or even overrule it,” said Sharon Browne, principal attorney at the Pacific Legal Foundation, which has filed briefs opposing race-conscious programs in both cases before the Court. “In elementary and secondary schools it makes no sense for school districts to assign students to schools by race.” The cases granted review on Monday, Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education, will be argued together this fall, possibly injecting the affirmative action debate into the election season. In both cases, white parents challenged programs that used race as a factor in school placements in ways that they say disadvantaged white students. In Seattle, where students have broad choice as to which high school they will attend, race is a “tiebreaker” factor in deciding which students will be assigned to a high school that is oversubscribed and racially imbalanced. The U.S. Court of Appeals for the 9th Circuit, in an en banc ruling citing Grutter, upheld the program last October. The other case involves schools in Louisville and the surrounding area, a district that was under a federal court desegregation decree from 1975 to 2000. After the order was lifted, a new plan was adopted that allowed for a wider range of student choices but required all schools to seek a black student enrollment of between 15 percent and 50 percent of the student body. In June 2004, Judge John Heyburn II of the Western District of Kentucky upheld the program in general, though he disapproved of some of the racial categorizing involved. Citing Grutter, the judge found that “the benefits of racial tolerance and understanding are equally as important and laudable in public elementary and secondary education as in higher education.” The U.S. Court of Appeals for the 6th Circuit upheld the decision last July. But before the high court, opponents of affirmative action argue that the compelling interest in diversity that may exist in higher education, which prepares students for a diverse workplace, may be outweighed in lower grades by the importance of teaching racial equality to young students. “Jefferson County’s schools are sending the wrong message to our children � that racial identification is more important than respect for individual rights and liberties in today’s society,” the Pacific Legal Foundation argues in its brief. The Council of the Great City Schools, in a brief filed at an earlier stage of the Kentucky case, argues by contrast that “the interests that school districts may promote by seeking racially and ethnically diverse school enrollments . . . are broader and even more compelling in the context of public elementary and secondary education” than in higher education. Tony Mauro can be contacted at [email protected]

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