Supreme Court might change rules on racial diversity

“What the Supreme Court really is doing is considering what is left in terms of the race issue . . . and what kinds of permissible actions a government can engage in when deciding racial issues,” NSBA General Counsel Francisco Negrón told urban school leaders Jan. 27 during an Issues Forum sponsored by the Council of Urban Boards of Education, a component of NSBA’s National Affiliate program.

In 2003, the high court ruled in two University of Michigan cases that the educational benefits of diversity in higher education -- improved teaching and learning, better preparation for the work force, and enhanced civic values -- could justify a limited use of race in admissions decisions.

But the vote on those decisions was divided, and with the departure of Justice Sandra Day O’Connor, a swing vote in both rulings, and the appointments of Chief Justice John Roberts and Justice Samuel Alito, some court observers are convinced the court’s majority has grown more skeptical of government policies based on race.

“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,” Roberts said at one point during oral arguments.

The cases before the high court are Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District 1. In each, the school district’s student assignment plan was challenged as unconstitutional for relying on race to place students.

Until the Supreme Court decided to hear these cases, “many of us who practice in this area thought it was pretty clear,” Negrón said. “Racial considerations were a compelling government interest, as long as the policy was narrowly tailored. But that’s apparently not what the Supreme Court had in mind.”

Believing the high court wanted to revisit the question of what “narrowly tailored” means, NSBA filed an amicus brief that attempted to shift the court from traditional integration-like views to a more pragmatic “post-integration” perspective.

Instead of arguing that school districts should be allowed to redress segregation in the community, NSBA asked the courts to recognize the need for school districts to have latitude in working with their communities to achieve their educational goals, including diversity.

Diversity, NSBA argued, is a legitimate educational goal. “Something happens when kids sit with kids from different backgrounds -- something in the civil nature of public education that fosters the kind of democratic principles we want taught,” Negrón said.

What’s more, he said, “students in racially isolated schools -- surprise, surprise -- perform poorly or more poorly than those students in diverse schools.” There are many reasons for that but “racial isolation affects learning.”

During December’s oral arguments, Justice Anthony Kennedy, widely believed to be a swing vote in these cases, noted that the Seattle policy appeared to engage in “outright racial balancing, which is patently unconstitutional.”