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The Supreme Court appeared headed on Monday toward a ruling that will sharply limit, if not eliminate, the use of race as a factor in assigning students to public schools to achieve diversity. During two hours of oral argument, Justice Anthony Kennedy, whose vote may determine the outcome of the case, seemed deeply skeptical of the constitutionality of using race as a factor, especially in a school district that has already been declared “unitary” and ended efforts to desegregate. “If we, for the first time, say that a system that has achieved unitary status . . . can turn around and use individual skin color . . . . We’ve never said that,” Kennedy exclaimed at one point. “That takes us on a very perilous course.” A ruling against the use of race could have a broad impact in school districts nationwide that use a variety of race-conscious methods to cure racial imbalances caused by housing patterns. Civil rights leaders who were among the spectators packing the courtroom Monday were pessimistic afterward. “If they are inclined to view these voluntary measures in the same light as segregation and any use of race is constitutionally suspect, then God help us,” said Ted Shaw, director and counsel of the NAACP Legal Defense and Educational Fund. “I’m not going to predict defeat, but it’s an uphill fight after what we heard today.” At issue in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education were programs aimed at achieving racial diversity and balance throughout the public schools of Seattle and Louisville, Ky., respectively. Parents whose children were not admitted to their school of choice because they would have upset the desired racial mix challenged the programs. But in both cases, appeals courts upheld the programs. One measure of the tenor of the arguments Monday was the repeated effort by Justice Stephen Breyer to remind his colleagues about long-standing Court precedents, ranging from Swann v. Charlotte-Mecklenburg Board of Education to Cooper v. Aaron, which in his view support the use of race to achieve public school diversity. Swann, the 1971 ruling that allowed the use of busing and racial balancing to eliminate lingering segregation, was repeatedly cited by Breyer. Once desegregation is achieved through these measures, Breyer said almost plaintively, “How could the Constitution . . . tell the school board it cannot make that effort anymore, it can’t do what it’s been doing, and we’ll send the children back to their black schools and their white schools?” Teddy Gordon, representing the Louisville parents who challenged the school board’s use of race, replied that race-based remedies are no longer appropriate once past desegregation programs have ended. “Once you’ve achieved the unitary status, you no longer get to carve out that exception to the Fourteenth Amendment,” Gordon said. Louisville School Board lawyer Francis Mellen Jr. responded by arguing that the program has effectively maintained the desegregation that was achieved after a court order started the process in the 1970s. “This case presents a story of a board of education that has replaced a desegregation decree with a student assignment plan that works.” Justices David Souter and Ruth Bader Ginsburg, and John Paul Stevens to a lesser extent, also seemed determined through their questioning to salvage the argument in favor of race-conscious school programs. Souter, for example, pointed out that the only harm Seattle or Louisville students suffer because of the race factor is that they might not get to go to their first-choice schools. But unlike university affirmative action programs that might result in qualified white students not gaining admission, the elementary and secondary schools will still educate all students in the district. “The principal benefit is the education, not the choice of schools,” Souter said. But Harry Korrell, who represented the Seattle parents who challenged that city’s program, said the use of race as a factor “strikes at the heart of the equal protection clause, which commands that government treat people as individuals, not simply as members of a racial class.” The only sign from Kennedy that he might not rule out all uses of race came when he repeatedly asked whether a school board could choose the site of a new school with the goal of achieving racial balance in light of residential demographics. Korrell said if racial equality was the sole goal, it would be unconstitutional. But he allowed that if race was just one of several factors, it might be permissible if analyzed in the same way the Court has handled race-based redrawing of voting districts. Solicitor General Paul Clement argued that “in the real world,” race is rarely the only factor in such decisions, implying that they could be permitted if other factors predominate. Clement participated in both cases, arguing against the use of race. He said race-neutral means are still available to school boards to achieve a racial mix, adding that “the lesson of history” is to oppose racial classifications by local school boards. Silent during the entire two hours was Justice Clarence Thomas, the Court’s only African-American member. In past rulings and speeches, Thomas has made it clear he opposes affirmative action and thinks it stigmatizes blacks. He has also argued that black students don’t necessarily get a better education just because white students are in their midst. At one point late in the arguments, Thomas leaned forward as if to start asking a question or making a comment, but he apparently thought better of it and leaned back again, allowing the clock to run out on arguments in what could be the most important civil rights cases in years. Tony Mauro can be contacted at [email protected]

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