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For some, the two school desegregation cases that will be argued in the Supreme Court this week are a long-wished-for rematch on affirmative action. Greatly disappointed with Justice Sandra Day O’Connor’s crucial vote upholding the University of Michigan Law School’s consideration of race in admissions, they hope that Justice Samuel Alito Jr. will join a majority that, at least, sharply limits that 2003 ruling. This week’s cases do present the Court with an important choice, but it is not about affirmative action. Instead it involves one of the Court’s greatest achievements: dismantling segregation in K-12 schools with Brown v. Board of Education (1954) and its progeny. The Court must decide whether to reaffirm basic legal principles announced in those cases or to reject them and strike out in a radical new direction that will deeply entangle the courts in local school board decisions and drastically restrict voluntary integration efforts. RACE IN THE BALANCE In both cases before the Court, plaintiffs are challenging their local school board’s voluntary decision to use race as one of several criteria in allocating children among public schools. Parents Involved in Community Schools v. Seattle School District No. 1 attacks Seattle’s plan for assigning ninth graders among the city’s high schools. Though students may sign up for any high school, sometimes a particular school will be oversubscribed. In choosing who may attend, the district first selects ninth-graders with a sibling at the school. Next, where “the racial make up of [a high school's] student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole” ( as the U.S. Court of Appeals for the 9th Circuit explained), the district takes into account students’ race until the ninth-grade population comes within the 15 percent variance. After that, race is not considered. Meredith v. Jefferson County Board of Education looks at a different plan in Louisville, Ky. Like Seattle, Louisville., seeks to achieve individual school populations that do not diverge too far from its districtwide average of 34 percent black enrollment. Students normally are assigned to their local elementary schools. But if allocating all neighborhood children to a particular school would produce a population of less than 15 percent or more than 50 percent black enrollment, some students will be assigned to their second-choice school. It is worth pausing for a moment to look at the history of race and education in these two cities. Litigation in the early 1970s produced a finding that Louisville’s schools were segregated, and a desegregation decree was entered in 1975. Judicial oversight continued until 2000. The measures imposed by the decree initially divided the community. But by the time judicial supervision ended, support was so strong that the elected school board voted to keep some of those measures in place. The board concluded that resegregation was “probable” without them and that maintaining individual school populations reflective of the wider community was important to achieving the schools’ educational goals. Seattle had a similar experience. In 1977, the NAACP filed a complaint with the U.S. Department of Education regarding segregation in Seattle schools. A number of groups threatened to file lawsuits if the school district did not act. Working with community groups, the school board developed a voluntary integration plan, including the use of race-based measures. A statewide initiative prohibiting the plan was invalidated by the U.S. Supreme Court. That plan has been modified several times over the ensuing 25 years and is reviewed annually by Seattle’s elected school board. Louisville’s journey from enforcing de jure segregation to embracing the benefits of integration and Seattle’s voluntary decision to address segregation in its school system are success stories in America’s battle with the legacy of slavery and legal discrimination. Through their elected representatives, these communities recognized the educational, cultural, and societal benefits of integration and the harms that flow from racial isolation, and they took steps to promote the former and avoid the latter. ONLY BY COURT DECREE? Unfortunately, these two cities are now targets of a campaign to prohibit any consideration of race in America’s effort to overcome its unhappy history. School districts still struggle with the reality of segregated housing patterns, which lead to segregated local schools. Yet the plaintiffs in these cases claim that any use of race in pupil assignments violates the 14th Amendment. The Louisville case demonstrates the absurd results of such a rigid rule. A school district that utilized race-conscious measures for decades to eliminate de jure segregation must cease the instant that the district is found to have remedied its prior segregation even if the school district determines that eliminating the measures will lead to resegregation. In other words, the patient may use the medicine to cure the disease, but not to prevent its reoccurence. Louisville argues that its race-conscious remedies are necessary to prevent a return of the segregation it spent 25 years eliminating. It also contends that abruptly dropping these measures would disrupt a well-functioning school system. And it finds a valuable pedagogical effect in educating children in schools with diverse populations. The situation is just as absurd for districts like Seattle that never engaged in de jure segregation. Under the plaintiffs’ rule, a school district could not voluntarily implement any race-based measure — no matter how limited — to avoid time-consuming, divisive, and expensive litigation leading to a court decree ordering such measures. The school district could not take action on its own in order to retain elected officials’ control over educational policy. As with Louisville, Seattle also argues for the pedagogical benefits that flow from educating children in schools with diverse populations. Not surprisingly, the 6th and 9th Circuits rejected the plaintiffs’ contentions, as have the 1st and 2nd Circuits in similar cases. Judge Alex Kozinski, a 9th Circuit judge appointed by President Ronald Reagan, joined in upholding Seattle’s plan. It is difficult, he wrote, to deny the importance of teaching children “how to deal respectfully and collegially with peers of different races.” And he concluded, “Through their elected officials, the people of Seattle have adopted a plan that emphasizes school choice, yet tempers such choice somewhat in order to ensure that the schools reflect the city’s population. Such stirring of the melting pot strikes me as eminently sensible.” CLEARLY COMPELLING Although Judge Kozinski also concluded that the school plans should be assessed under a rational-basis standard, it is clear that they satisfy even strict scrutiny. First, the school boards’ interest in providing children with a diverse educational environment is compelling. The Supreme Court recognized as much in Swann v. Board of Education 35 years ago. The Swann Court stated that “the broad discretionary powers of school authorities” encompass a policy “that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole.” Although that statement was dicta in Swann, Justice William Rehnquist later expressed the same view in denying a stay of a voluntary plan that included race-conscious busing. And Justice Lewis Powell Jr. several times endorsed the use of voluntary measures by school boards. Congress also has recognized the strong governmental interest in eliminating racial isolation, most recently in findings contained in the No Child Left Behind Act. It singled out the need to support “local education agencies that are voluntarily seeking to foster meaningful interaction among students of different racial and ethnic backgrounds.” One of the plaintiffs’ counter-arguments is that promoting diversity specifically between white and nonwhite students can never be a compelling interest: A school district must choose between promoting diversity on the full range of racial and ethnic bases or not promoting diversity at all. But the Supreme Court’s precedents contain no such limitation. And given our nation’s 300-year history of specific, targeted discrimination against African-Americans and the documented residual effects of that conduct, schools should certainly be permitted to provide black and white students with a racially diverse school environment. Besides the compelling-interest prong of strict scrutiny, the school boards’ plans also satisfy the narrow-tailoring prong. The plaintiffs complain that there are no student-by-student assessments in the Louisville and Seattle plans. The Court has referred to individualized assessment in upholding college and graduate school admissions that utilize race-based criteria to achieve a diverse student body. But it did so because the schools used that kind of admissions system. The K-12 level operates quite differently. A public school system does not admit some students and reject others. It must educate all children within its boundaries and establishes broad standards simply to allocate them among its schools. There is no assessment of each student’s merits and demerits. The fact that one goal of the school district is racially diverse student bodies should not force the district to jettison the whole concept of broad standards and undertake burdensome individual assessments. Moreover, the Court has long recognized that public education is mainly a matter for state and local authorities. As the Court wrote in Goss v. Lopez (1975), “[j]udicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.” And so the Court has deferred to school boards’ decisions in applying a variety of constitutional protections, including the First and Fourth Amendments and the protections of due process. The same sensitive review is appropriate in the narrow-tailoring inquiry. Simply put, there is no unnecessary use of race in either plan. Neither plan imposes a strict quota, neither imposes undue harm on any racial group, and neither uses race as the primary basis for student assignments. Both school boards considered race-neutral alternatives and determined that they would not accomplish the objective. That is the essence of narrow tailoring. Should the Court decide otherwise, the impact could be dramatic. School boards take race into account in a variety of other ways. For example, Louisville considers a neighborhood’s racial composition in determining the geographic area to be served by a particular school. Under the plaintiffs’ theory, any such zoning decision would be automatically unconstitutional. Likewise, decisions where to locate magnet programs — which often are based on the racial makeup of a school’s neighborhood (and the interest in attracting students from other neighborhoods to promote diversity) — and decisions where to site new schools that look at racial makeup would also be invalid. Hopefully, the Supreme Court will reject the plaintiffs’ invitation to turn away from its historic commitment to racial integration. Hopefully, the justices will reaffirm the authority of elected school boards to take measured steps to provide children with the educational benefits that flow from a diverse environment. The alternative would be the reversal of decades of progress, as well as a massive increase in judicial second-guessing of school board decisions. It’s hard to believe that anyone’s children would benefit from that.
Andrew J. Pincus is a partner in D.C.’s Mayer, Brown, Rowe & Maw. He has argued 15 cases before the Supreme Court and filed briefs in more than 100 others. He filed an amicus brief on behalf of the Leadership Conference on Civil Rights in support of the Seattle and Louisville school districts in the Supreme Court.

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