Another Supreme Test?

Another Supreme Test?
A High Court decision striking down race in K-12 admissions
could jeopardize race-conscious policies in higher education.

By Ronald Roach

The decision by the U.S. Supreme Court to hear arguments in two K-12 school assignment cases in its next term has raised serious questions about the viability of race-conscious policies in American education, legal experts say. 

Just three years after the court upheld race-conscious admission policies in higher education in the Grutter v. Bollinger ruling, the new cases will test whether that precedent applies to public elementary and secondary education. As the court decides whether policies that foster racial and ethnic diversity in public K-12 schools are worthy of constitutional protection, observers say it’s possible that the Justices could render a decision that would either invalidate or open the door to the eventual elimination of race-conscious affirmative action in U.S. higher education.
“I think people thought the challenge [to higher education affirmative action] was going to rest for awhile,” says R. Richard Banks, a Stanford University law professor and an expert on race and law.

The two cases involve school systems in Louisville, Ky., and Seattle, Wash., which allowed school officials to consider race in how they assigned students to schools. In both cases, the parents of White students sued the school districts when their children were refused admission into popular area schools.

Legal observers say it came as a surprise that the court, which gained two new members in the past year, accepted the two cases despite the fact that, in both cases, the federal appellate courts had sided with the school districts in their use of race as a factor in school assignments. The tendency of the court is to take on cases where there have been different rulings by the lower courts and the justices intervene as a move to resolve those differences.

Following the court’s decision to hear the school cases, pro-school integration activists and scholars expressed dismay that the court had decided to intervene and not allow the lower court decisions to stand.
“Here we are 52 years after the Supreme Court told us that separate and unequal education could not be the case, and as we stand here in 2006, the Supreme Court has agreed to hear two major cases that could set the clock back for African-Americans more than half a century,” said Harvard University law school professor Charles Ogletree, according to the Chicago Sun-Times.

Scholars and activists have pointed to the appointments of Chief Justice John Roberts and Justice Samuel Alito as the likely basis for the court’s decision to take on the school assignment cases. The two newest justices, both conservatives appointed by President Bush in the past year, took critical stances on affirmative action during stints as attorneys in the Reagan administration. In addition, three dissenting justices from the Grutter ruling — Anthony Kennedy, Antonin Scalia and Clarence Thomas — remain on the court. The new justices, along with the other right-leaning members, are believed to oppose the race-conscious policies, which are meant to integrate elementary and secondary schools and to achieve meaningful minority representation in elite colleges and universities.

“The bottom line is that you have two new justices who appear to want to have a say on race-conscious policies in education,” says Lee A. Albert, a University of Buffalo law professor and constitutional law expert.  

Bryan K. Fair, a University of Alabama law professor, says he would advise higher education leaders, associations and organizations that are pro-affirmative action to mobilize this year as they did with the Grutter case in 2003.

Taking a more pessimistic view than many experts, Fair says he believes that just as the Brown v. Board of Education decision established a legal precedent for all of public education, a decision in the Louisville and Seattle cases striking down the use of race in school integration could wipe out all race-conscious policies. At the very least, a decision striking down the practice in K-12 could open the door to a successful challenge of higher education policies, Fair contends.

“It’s likely that a decision [against school integration] could lay the foundation for overturning Grutter,” he says.

Stanford’s Banks says the court could render a decision that sets a new standard over the use of race in K-12 while leaving the Grutter precedent intact. Such a decision might be limited only to districts that never had a history of racial segregation, such as in Seattle, and to districts that had been segregated but were at some point deemed to be desegregated, as was the case in Louisville.

School districts under court order to desegregate might be exempt from a ruling that would limit or even eliminate the use of race in school assignments, Banks contends. And under a strict system abolishing race as a factor in K-12 assignments, college and university academic outreach programs targeting minority high school students could very well face heavy scrutiny.

However, Banks believes it’s highly unlikely the court will go after higher education affirmative action on the basis of the Seattle and Louisville cases. “It would be an extreme move by them to overturn Grutter,” he says.



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