Guidance to School Boards on Race and Student Assignment

By William L. Taylor and Edwin C. Darden

This publication is intended to assist school board members and others in understanding the legal issues involved when officials seek to ensure a racially diverse learning environment for children. A popular technique for achieving that educational goal is to use race, ethnicity, or other special characteristics in determining magnet school admission, transfer program criteria, and, sometimes, district-wide attendance zones.

Recent court cases and conflicting opinions by legal counsel have served to confuse rather than clarify what is permissible and what is prohibited. With that in mind, this statement attempts to explain the issue in clear language, provide insights about how federal courts might analyze and weigh cases that come before them, and suggest a means of achieving planned diversity.

No single document can provide a universal solution to this complex situation. However, an effort can be made to build a solid foundation and provide guidance to those who are open to pursuing this outcome. It is the enduring hope of the NSBA National Affiliate Program, the NSBA Council of School Attorneys, Attorney William Taylor, and the NSBA Office of General Counsel that this document will prove useful.

In time, perhaps the U.S. Supreme Court will render a decision in this area of the law, clarifying its dimensions and making a profound impact on the future. The quality of education in the 21st century rests upon the ability of local decision makers to prioritize citizenship, harmony, and diversity as central, everyday lessons taught in America's classrooms.

May school officials adopt student assignment policies deliberately designed to reduce racial isolation or foster diversity in their public schools?

Despite recent attacks in federal courts, there are many powerful reasons - both legal and educational - supporting school district policies that strive for a diverse learning environment. This publication is designed to articulate the legal rationale for diversity policies in public schools and to provide a foundation to districts that are defending existing policies or considering new approaches.

A fundamental goal of race-sensitive policies is to avoid the harm caused by racial isolation. In the 1990s, the student-assignment tools adopted during the last three decades as vehicles for desegregation continue to be used by some of those school districts.

Changing U.S. Demographics
	1997	2050 (projected)
White	73%	53%
Hispanic	11%	25%
Black	12%	14%
Asian	4%	8%

The new twist is this: School systems that have never been under court order are adopting the same techniques. Others that were once subject to court supervision have obtained unitary status (a court ruling that the district has officially eliminated the effects of past discrimination) and now face a dilemma. Still others that, through a consent decree or settlement agreement promised the government that they would change, are revisiting their plans or simply continuing the course amidst threats of legal action.

The answers to these legal attacks fall in two categories:

1. Racial diversity serves every student. It enhances academic performance and ensures adequate preparation for an increasingly multiracial future.

2. Because student assignment is a policy decision, local school boards have the power to actively avoid the known educational harms associated with racial isolation and can make judgments about what type of learning climate is in the best interest of children.

There are two other important points to keep in mind. First, it is crucial that school districts understand and articulate the differences between K-12 education as compared with employment, contracting, and even higher education. For example, public schools have an obligation to educate all children. Unlike employers, they cannot reject applicants as unqualified.

Second, the use of race in other contexts has been deemed unconstitutional in some circumstances. To convince a court that race is an appropriate consideration is a difficult battle – but one that can be won. A school district with a student-assignment policy that includes race and ethnic factors should carefully explain the basis of its policy to be prepared for a legal challenge.

When can diversity measures be used in public schools?

In its landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court spoke forcefully of the educational harm done to black children by intentional racial segregation of the public schools. In the years that followed, federal courts have made it clear that race-conscious desegregation remedies – such as magnet programs, majority-to-minority transfer programs, and integrative attendance zones – are necessary to undo the harms caused by segregated schools.

In another major decision, the Supreme Court said that even when segregation was not caused by unconstitutional actions, local school authorities have broad discretion to adopt race-conscious policies to desegregate schools. (Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971). See also Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), aff'd, 402 U.S. 935 (1971); Parents Ass'n of Andrew Jackson H.S. v. Ambach, 598 F.2d 705 (2nd Cir. 1979)).

Consistent with this approach, courts have continued to authorize the use of magnet schools, majority-to-minority transfer programs, and other race-sensitive desegregative methods even after school districts have been declared unitary and are therefore deemed to have fulfilled their constitutional obligations. (Riddick v. School Bd. of Norfolk, Va., 784 F.2d 521 (4th Cir. 1980); Willa v. Manonenee Falls Sch. Bd., 658 F. Supp. 1416 (E.D. Wis. 1987)).

In some recent cases, however, district courts have ruled against the use of these desegregative methods on the grounds that race-conscious action is improper in almost all circumstances unless it is remedial. (Cappaccione v. Charlotte-Mecklenburg Bd. Of Ed., Nos. 3:97-CV-482-P, 3:65-CV-1974-P (W.D. N.C. 1999); Tuttle v. Arlington County Sch. Bd., No. 98-1604 (4th Cir. 1999); Eisenberg v. Montgomery County Public Schools, No. 98-2797 (4th Cir. 1999); Brewer v. West Irondequoit Central Sch. Dist., 32 F. Supp.2d 619 (W.D.N.Y. 1998), appeal pending, No. 99-7186 (4th Cir. 1999)).

A starting point in assessing the implications of these conflicting decisions is to examine your school district's legal status.

If your district is still operating under a court order to desegregate, a challenge to race-conscious remedies being used to comply with the court order is less likely to be successful. Similarly, school authorities may be able to cite desegregation plans they negotiated with the Office for Civil Rights to comply with the Civil Rights Act of 1964 as a defense for magnet schools or other desegregation policies.
If your district is not operating under such an order or negotiated plan - either because it has achieved unitary status or has not had litigation - it will be more difficult to convince a court that race-conscious policies are justified. Carefully considering the reasons for such policies and pursuing the supportive authority for desegregation and diversity policies suggested here will help in that task. One starting point is to examine state law and policy. Many states have policies that support the goals discussed here.

Racial diversity is an educational benefit serving all students

Public schools play a unique role in our nation. As the following passages attest, it is the school's purpose to develop an informed citizenry that is able to participate fully in a democratic society.

In Brown, the Supreme Court identified public education as "perhaps the most important function of state and local governments. ... It is required in the performance of our most basic public responsibilities. ... It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values. ..." (347 U.S. 483, 493 (1954)).
Twenty-five years later, the Supreme Court underlined the importance of this sentiment by speaking of the "singular importance" of public elementary and secondary schools "in the preparation of individuals as citizens and in the preservation of values on which our society rests." (Ambach v. Norwich, 441 U.S. 68, 76 (1979)).
"One of the objectives of public education is the inculcation of fundamental values necessary to the maintenance of a democratic political system." (Bethel School District v. Fraser, 478 U.S. 675 (1986)).
Horace Mann saw public schools as "the great equalizer of the condition of men; the balance wheel of the social machinery."

Our future will require greater, not less, ability to operate in a pluralistic society. The economies of the world are more linked than ever before, and the international economy is increasingly important. As the National Commission on Excellence in Education declared, "If only to improve on the slim competitive edge we still retain in world markets, we must dedicate ourselves to reform our education system for the benefit of all." (A Nation at Risk, p. 7, 1983)

In addition, changing demographics in the U.S. mean our students live in a more diverse society:

By the year 2050, Caucasians will be only a slight majority of our population.
By the middle of next century, more than one quarter of all school-age children will be the children of immigrants. This change is already evident. In Fargo, N.D., for example, one-third of the students at Madison Elementary School are enrolled in classes in English as a Second Language. In a school with 265 students, more than a dozen different languages are spoken.
The student-age Latino population has grown rapidly in the last 30 years, increasing by 218 percent from 1968 until today.
Preschoolers are the most diverse group in America (37 percent nonwhite), followed by the 5 to 9 age groups (35 percent nonwhite).

Finally, a number of special factors support racial and ethnic diversity in elementary and secondary education. Through diversity, the public schools help to:

Create better understanding in a nation of diverse peoples.
Keep faith with the Jeffersonian ideal of a common school.
Prepare children to be effective citizens of their communities, the nation, and the world.
Instill civic values and an understanding of the principles of democracy.

Common Means to Maintain or Achieve Diversity

Magnet Schools. Congress has long provided financial assistance for magnet schools, finding that "magnet schools are a significant part of our Nation's effort to achieve voluntary desegregation of our Nation's schools" and that it is "in the best interest of the Federal government" to continue support not only of school districts that are implementing court-ordered plans, but also of those "seeking to foster meaningful interaction among students of different racial and ethnic backgrounds." (20 USC B7201).

Transfer policies. These include majority-to-minority transfer policies, which allow students to transfer only from schools where they constitute a racial majority to schools where they would be in the minority or would not tip the balance. Ordinarily, transfer policies and other student assignment devices do not involve the exclusion of children but merely their assignment to a school other than their first choice.

Attendance zones. Attendance zones may be drawn to maintain racial parity or maximize the likelihood of racial diversity.

Admission to elite or special academies. Admission policies may include race as a factor in admission to these schools to maintain or to develop racial diversity. In these policies, race is usually just one of a number of factors in the admissions decision.

Interdistrict transfer programs. These programs allow entrance to or exit from the district for purposes of desegregation. Interdistrict transfer programs now operate in the metropolitan areas of St. Louis, Mo.; Boston, Mass.; and Wilington, Del.

The benefits of diversity

The sources documenting the sociological and psychological harms of segregation cited by the U.S. Supreme Court in were expanded by major government studies in the 1960s. (J.S. Coleman et al., Equality of Educational Opportunity, U.S. Dept. of Health, Education and Welfare, 1966; U.S. Commission on Civil Rights, Racial Isolation in the Public Schools, 1967). Since then, a great deal of additional evidence has been amassed, not only about the detrimental effects of segregation, but also about the important educational gains for minority children that have come from properly implemented desegregation policies.

Diversity has been correlated with the following benefits:

Improved educational performance for black children
"Desegregation has had some positive effect on the reading skills of African American youngsters"; "evidence has begun to accumulate that desegregation may favorably influence such adult outcomes as college graduation, income, and employment patterns." - Source: Janet Ward Schofield, Review of Research on School Desegregation's Impact on Elementary and Secondary School Students, Handbook on Research on Multicultural Education (James A. Banks, ed., 1995).
Desegregation tends to raise black achievement based upon 38 samples of students studied by 12 authors. - Source: Robert L. Crain and Rita E. Marhard, Minority Achievement: Policy Implications of Research, Effective School Desegregation: Equity, Quality and Feasibility (William D. Hawley, ed., 1981).
On National Assessment of Educational Progress tests of reading and mathematics, the gap between blacks and non-Hispanic whites narrowed between 1971 and 1996. "The direct effects of school desegregation might also account for some black gains at each age." - Source: David Grissmer et al., Why Did the Black-White Gap Narrow in the 1970s and 1980s? The Black-White Score Gap (C. Jencks and M. Phillip, eds., 1998).
Desegregation yields enhanced achievement for African American students, especially when voluntary and when begun at an early age. - Source: Amy Stuart Wells and Robert L. Crain, Stepping Over the Color Line: African-American Students in White Suburban Schools (1997).
Increased graduation rates for minority children
Students who attended desegregated schools are more likely to attend and graduate from college and to work in professional positions. - Source: James M. McPartland and Jomills H. Braddock II, Going to College and Getting a Good Job: The Impact of Desegregation, Effective School Desegregation (Willis D. Hawley, ed., 1981). See also Robert L. Crain and Jack Strauss, School Desegregation and Black Occupational Attainments: Results From a Long-Term Experiment (1985); and The Role of Social Science in School Desegregation Efforts: The St. Louis Example, 66 Journal of Negro Education 195 (1997).
"Since Brown there has been a wealth of new evidence confirming the important role that schools play in preparing students to live in a pluralistic society and the significant role that the diversity of a school environment plays in the healthy development of children. It is our schools that must reaffirm - both by lesson and by example - the moral correctness of equality and the value of a quality learning experience." - Source: U.S. Department of Education Secretary Richard Riley, May 17, 1999, on the occasion of the 45th anniversary of Brown v. Board of Education.
"Brown's judgment that segregated schools are inherently unequal remains correct, not because something magic happens to minority students when they sit next to whites but because segregation cuts students off from critical paths to success in American society." - Source: Gary Orfield and Susan E. Eaton, Dismantling Desegregation: The Quiet Reversal of Brown V. Board of Education (1996).
Increased tolerance among students
"Tolerance evolves, like culture or language. Our regard for others is rarely immutable; and it often depends as much on the milieu in which our attitudes develop, as on the particular outgroup in question." - Source: A. Wade Smith, Cohorts, Education, and the Evolution of Tolerance, 14 Social Science Research 205-225 (1985).
"Racial separatism is neither ... a viable option for most African Americans nor an attractive one for most whites. At best, it is unstable and personally constricting; at worst, it is a recipe for increased tension, hatred, and eventual violence." - Source: Jennifer Hochschild, Is School Desegregation Still a Viable Policy Option? PS: Political Science & Politics (September 1997).
Long-term benefits
Diversity leads to reduced racial stereotyping, diminished fears of hostile interactions, and better acceptance of racially mixed occupational settings among both African Americans and whites. - Source: Schofield, supra; and W. T. Trent et al., Why desegregate? The effect of school desegregation on adult occupational desegregation of African Americans, Whites, and Hispanics, 31(2) Int'l Journal of Contemporary Sociology 273 (1994).
Students who have had a desegregated school experience are better prepared for public service occupations such as teaching and police work, where they are called on to serve a diverse citizenry. - Source: Compelling Interest: Examining the Evidence on Racial Dynamics in Higher Education, A Report of the Aera Panel on Racial Dynamics in Colleges and Universities. Mitchell Chang et al., eds. (1999).
Business executives have found that desegregated workplaces are often more productive; enhance organizational flexibility; and lead to an expansion of markets. - Source: Compelling Interest, supra.

Constructing diversity is an educational policy matter within local school board control

"Rectification of past discrimination is not the only setting in which government officials can lawfully take race into account in making decisions." (Wittmer v. Peters, 87 F.3d 916 (7th Cir., Posner, J., 1996)).

Not only is it appropriate for school officials to develop and implement policies of racial and ethnic diversity for public schools, but schools have a singular role in fostering the individual and societal values that diversity represents.

In Swann, the U.S. Supreme Court applied the principle specifically to the matter discussed here: "School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude ... 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. To do this as an educational policy is within the broad discretionary powers of school authorities."

School board governance is a unique structure designed to reflect the will, interests, beliefs, and value system of the community it serves. Emphasizing the school district's own history and local viewpoint about the global benefits of diversity can help make the case for race-conscious education policies.

Avoiding a return to segregation

Research shows that segregation is still a contemporary reality:

More than half of the African American students in Illinois, Michigan, New Jersey, and New York attend schools with at least 90 percent black or Latino populations.
The Harvard University Civil Rights Project found that 74.8 percent of Latinos attend schools with a more than 50 percent minority student population. Of those, more than 35 percent attend schools with a more than 90 percent minority population.
Whites remain the most isolated of all racial groups, the 1999 Harvard study found, with white students attending schools with classmates who are 81 percent white.

Moreover, as Harvard researcher Gary Orfield has pointed out, "Restoring neighborhood schools forces more African American and Latino children into isolated high-poverty schools that almost always have low levels of academic competition, performance, and preparation for college or jobs. Almost no whites end up in such schools under the neighborhood system."

As these findings suggest, trends toward resegregation have intensified recently. "We are floating back toward an educational pattern [segregation] that has never in the nation's history produced equal and successful schools," wrote Gary Orfield and John T. Yun in Resegregation in American Schools (1999). "There is no good evidence that it will work now. The 1990s have actually seen the once shrinking racial achievement gaps begin to widen again on some tests"

U.S. Education Secretary Richard Riley put this trend in perspective in his May 17, 1999, speech commemorating the 45th anniversary of Brown v. Board of Education. "We need to focus on issues that go beyond basic challenges to equality," he said, "and involve more complex questions of perception and trust, which go to the very heart of how we live, work, and interact with each other."

Some legal considerations

While this document does not provide a thorough legal analysis, it relates to the first step in a court's consideration of a constitutional challenge: establishing a compelling interest that supports taking race into account when making decisions about student assignments. To be fully successful, however, requires that the assignment system also be narrowly tailored to achieve the legitimate outcome. If the program is too broadly drawn or seems arbitrary, it is likely to fail court scrutiny, no matter how laudatory its motives. School districts should therefore move purposefully and with the close guidance of an attorney in designing student-assignment programs.

One conservative jurist has formulated the test for race-conscious programs as follows: "It can survive that intense scrutiny only if the defendants show that they are motivated by a truly powerful and worthy concern and that the racial measure that they have adopted is a plainly apt response to that concern." (87 F.3d 916).

This suggests that schools with diversity policies must present the courts with the powerful and worthy reasons they contemplated - such as the ones stated above - and then present evidence that their response (a student-assignment program that weighs race) was apt and restrained, or narrowly tailored.

Such a program carries with it the best opportunity to prevail in a court battle.

Some final thoughts

In preserving or devising race-sensitive remedies, there are pitfalls to avoid. For example, in those rare cases where admission to elite schools is determined through an examination, several courts have frowned on the establishment of separate racial lists or processes. But school districts pursuing diversity policies have a great deal going for them - the documented harm of racial isolation, the academic success of many desegregation programs in the past and present, and the proven future value of diversity to individual students, to schools, to communities, and to the nation.

In the end, the question to be asked is whether the policy you propose to pursue will result in a fair distribution of opportunities to all students. If the answer is affirmative and the policy is both precise and thoughtfully crafted, there is every reason to believe that it will survive attack.

Court Cases

U.S. Circuit Courts of Appeals Division

Eisenberg v. Montgomery County Public Schs., 19 F. Supp.2d 449 (D. Md. 1998), considering petition for certiorari, No. 98-2797 (4th Cir. 1999). The court found that a program using race to restrict transfers was not narrowly tailored to achieve its purpose.

Ho v. San Francisco Unified Sch. Dist., 147 F.3d 1189 (9th Cir. 1998) (regarding 965 F. Supp. 1316 (N.D. Cal 1997)). The court granted preliminary approval to a settlement outlining a new student-assignment program in which race and ethnicity are one factor but not a primary or predominant one.

Hunter v. Regents of the Univ. of California, No. 97-55920 (9th Cir. 1999). The court upheld a race-conscious program at an elementary school that was part of a university lab, stating that using race is a compelling state interest and is narrowly tailored.

Stanley v. Darlington County Sch. Dist., 84, F.3d 707 (4th Cir. 1996). The court reversed, in part, 915 F.Supp. 764 (D.S.C. 1996), which held that while the 14th Amendment empowered federal courts to remedy a state's equal protection violations, it did not provide any basis for a contribution claim by a political subdivision (i.e., a school district) against the state that created it. The court reasoned that permitting such a claim would constitute impermissible interference in a unique exercise of state sovereignty regarding allocation of the state's financial resources.

Tuttle v. Arlington County Sch. Bd., No. 98-1604 (4th Cir. 1999), considering petition for certiorari. The court held that a diversity rationale did not support the use of race in elementary and secondary student assignment.

Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1999) (reversing 996 F. Supp. 120 (D. Mass. 1998)). The appeals court invalidated the admissions policy at Boston Latin Academy, finding that the Boston school system had not demonstrated a compelling interest that would support a race-sensitive admission policy.

U.S. District Court Decisions on Appeal to U.S. Circuit Courts of Appeals

Brewer v. West Irondequoit Central Sch. Dist., 32 F. Supp.2d 619 (W.D.N.Y. 1999), appeal pending, No. 99-7186 (2nd Cir. 1999). In a challenge by a white student to an urban-suburban interdistrict transfer program designed to encourage voluntary racial integration of schools in Monroe County, N.Y., the district court held that diversity interest cannot support the use of race in elementary and secondary student assignments.

Capacchione v. Charlotte-Mecklenburg Schs., No. 97-CV-482-P; 3:65-CV-1974-P (W.D.N.C. Sept. 1999) appeal pending. The district court found that denial of entrance to a magnet school to a white girl due to race was improper and declared the district unitary.

Manning v. School Bd. Hillsborough County,FL, 24 F.Supp.2d 1277 (M.D. Fla. 1998), appeal pending (11th Cir.). In this ongoing desegregation case, the court held that the district was not required to adhere to a particular race ratio, but was required to provide reasonable explanations for schools substantially disproportionate in their racial composition.

Martin v. School Dist. of Philadelphia, No. 95-5650, 1995 SL 564344 (E.D. Pa Sep. 21, 1995). The court found that the burden on students denied transfers because of race was "relatively light" where no student would be denied an adequate education.

Cases in U.S. District Court

Cowan v. Charleston County Sch. Dist., No. 2:97-2493-08 (D.S.C. filed Aug. 20, 1997). The complaint alleges an equal protection violation because magnet schools are "choice" schools that use race in student assignment.

Hampton v. Jefferson County Bd. of Ed., No. 3:98CV-262-H (W.D. Ky. June 10, 1999). The court found that a 1975 desegregation decree was still in effect and that the decree permits the use of racial classifications to prevent the reemergence of racially identifiable schools.

Jacobs v. Independent Sc. Dist. No. 625, No. 99-CV-542 (D. Minn. filed Apr. 6, 1999). Four white students filed suit challenging the use of race in assigning students to the St. Paul, Minn., Capitol Hill magnet schools.

Rosenfeld v. Montgomery County Public Schools, No. L-98-1793, 1999 WL 137630 (D. Md. June 18, 1998), appeal pending (4th Cir.). The complain alleges violation of Title VI of the Civil Rights Act of 1964 and the 14th Amendment equal protection clause because of different admission standards for minority groups seeking to enter certain schools.

Scott v. Pasadena Unified Sch. Dist., No. CV99-1328 (C.D. Cal. filed Jan. 22, 1999). The complain challenges a student-assignment policy that considers race, color, national origin, ethnicity, and gender.

U.S. District Court Decisions Not Appealed

Benkeser v. DeKalb County Bd. of Educ., No. 1:97-CV-2369-WBH (N.D. Ga. Aug. 22, 1997). The court denied the white plaintiffs' motion for a preliminary injunction in a Equal Protection Clause challenge to a racial balancing policy in admissions to magnet schools that were created to eliminate racial discrimination and the vestiges of past discrimination; subsequently, DeKalb decided as a policy matter not to use race in admissions.

Citizens Concerned About Our Children v. School Bd. of Broward County, FL, 966 F.Supp. 1166 (S.D. Fla. 1997). The court ruled that Citizens Concerned, as a unincorporated association made up of African-American parents, did not have standing to bring suit challenging the school board's busing program, the magnet school's admission policy, and other claims of racial discrimination. Individual plaintiffs were allowed to proceed with the generalized claims, e.g., substandard facilities and activities at traditionally black schools, and racial discrimination in hiring and assigning faculty and staff. The court cautioned that injunctive relief would only be available if there was proof of "intentional discrimination."

Equal Open Enrollment Ass'n v. Board of Educ. of Akron City Sch. Dist., 937 F.Supp. 700 (N.D. Ohio 1996). The court enjoined the school district from using a desegrative student transfer program that would have barred white students from transferring to an adjacent district despite a state open-enrollment statute.

Roe v. Houston Indep. Sch. Dist. (1996). The case was settled, with the school district agreeing to eliminate racial guidelines as the determining admissions factor and make race just one of several factors to be considered.

Tito v. Arlington County Sch. Bd., No. 97-540-A, 1997 U.S. Dist. Lexis 7932 (E.D. Va. May 13, 1997). The court found that no compelling state interest was served by a policy for admission to systemwide alternative school. The admissions policy was altered after court found the selection process waunconstitutionalal as applied. The revised policy is under challenge in Tuttle.

About the Authors

This guidance statement was prepared with the invaluable assistance of William L. Taylor, who teaches education law at Georgetown University Law Center and has litigated many school desegregation cases. Mr. Taylor can be reached at (202) 659-5565 or through e-mail at williamtaylor@wltlaw.com.

Edwin C. Darden, former staff attorney for the National School Boards Association, is co-author of this statement. Mr. Darden is currently Director, Center for Urban Schools, New York State School Boards Association and can be reached at (518) 783-0200 or through e-mail at edwin.darden@nyssba.org.

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