Supreme Court will consider race-based admissions policies

The high court’s attention to this issue is welcomed by some legal experts but also has generated some unease among civil rights advocates, who worry the justices might curb the ability of school boards to counter a nationwide trend toward resegregated schools.

NSBA General Counsel Francisco Negrón hopes the court will tackle questions arising from its 2003 rulings in Grutter v. Bollinger and Gratz v. Bollinger, which concern race-based admissions policies at the University of Michigan.

The court affirmed that racial quotas were unconstitutional but endorsed the idea that the university had a compelling educational interest in promoting racial diversity and that a narrowly tailored strategy to achieve that diversity would pass constitutional muster.

“What we’re hoping to get from the Supreme Court is some clarity,” Negrón says. “How far can you go in promoting diversity?”

The answer to that question has enormous implications for the nation’s public schools. Many are struggling to promote classroom diversity in the face of powerful demographic forces. Yet the courts have strictly limited the ability of school districts to use race as a factor in student assignments, while at the same time freeing many districts from court-ordered desegregation plans.

According to Harvard University’s Civil Rights Project, public schools are increasingly becoming more segregated. In the South, the percentage of black students now attending predominantly minority schools rose from 61 percent to 71 percent in little more than a decade.

One of the cases the Supreme Court will hear involves the Seattle school district. School officials had tried to promote diversity by adding a race-based “tie-breaker” to the district’s school choice system of enrollment. If too many students applied to the same school, students whose race would improve the school’s diversity gained an edge. The school district put the policy on hold until the legal issues are resolved.

The other case involves Jefferson County, Ky., where school leaders took a slightly different approach. The school board adopted a “managed choice” system that allowed students some choice of schools but also required most schools to maintain a black enrollment of at least 15 percent and not more than 50 percent.

Each assignment plan was challenged by parents, who claimed that race-based admissions policies unfairly penalize white students. In both cases, a federal appeals court upheld the school district policy.

For Negrón, it is noteworthy that the high court chose to review two separate cases -- with different histories regarding desegregation and different solutions to promote diversity. He says that suggests the justices might want to use the cases to draw a finer line between what are -- and aren’t -- acceptable criteria for promoting diversity.

A key issue for school boards is how the high court applies the University of Michigan decisions to K-12 public schools.

Justices upheld the university’s law school admissions policy, which used race as one of many factors in determining the admission of individual students. But they struck down the use of a points-based formula that gave minorities an edge in gaining admission to the undergraduate school.

In ruling on the Seattle program last year, the 9th Circuit Appeals Court expressed some caution in using a ruling on university admissions policies to guide it in judging the policies used for admission to a public school. Circuit Judge Alex Kozinski, in a concurring opinion, put it colorfully: “I heard the thud of square pegs being pounded into round holes.”

Negrón notes that the Michigan decisions did acknowledge that educators have a compelling interest in promoting racial diversity in schools -- an important point that NSBA intends to emphasize in an amicus brief that it will submit to the high court.

“School districts have a pedagogical concern with promoting diversity,” he says. “One of the functions of schools is to socialize students . . . to increase their civic education. We know that racial isolation is not a conducive environment when you’re attempting to address that. We need latitude to make policies that make sense.”

Yet there are civil rights advocates who will be watching the court with some trepidation, particularly with the retirement of Justice Sandra Day O’Connor and her replacement by Samuel Alito, who is viewed as having a more conservative view about affirmative action policies.

“Why would they take these cases?” asks Gary Orfield, director of Harvard’s Civil Rights Project. “The court already has done a lot to reverse desegregation plans across the country.”

Since a judge ordered the Charlotte-Mecklenburg (N.C.) school system to stop using race in its admissions policies, the district has seen increasing segregation in its schools.