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Supreme Court Hears Arguments For Voluntary Desegregation

During oral arguments Monday before the U.S. Supreme Court, neither the attorneys fighting race-conscious school assignments, nor the justices in their questioning,  suggested that racial diversity was an unimportant goal. The primary issue before the court was whether achieving racial diversity in schools is a compelling enough goal to justify government intervention.

In two hours of rigorous questioning, the justices swayed between the specifics of  two K-12 school desegregation programs that have sparked a national debate over the use of race in school assignments and the broader national implications of diversity initiatives.

At issue are desegregation plans in the school districts of Seattle (Parents Involved in Community Schools vs. Seattle School District No 1.) and Louisville, Ky. (Meredith vs. Jefferson County Public Schools), where White parents say their children were denied entry into the school of their choice because of the districts’ efforts to maintain racial balance.

Questioning by the justices shed little new light on the direction the court might take. With the retirement of Justice Sandra Day O’Connor, the deciding vote in the 2003 decision to uphold affirmative action in college admissions, many suspect her replacement, conservative Justice Samuel Alito, may be the swing vote against using race in admissions.

On Monday, Alito noted that several high schools remain segregated even under Seattle’s “open choice” plan, which allows student to choose their school. Under the now-defunct program, race was used as a tie-breaker in admissions when there was more demand for a school than space, and the district wanted to ensure racial balance. Later, Alito seemed to challenge the notion that Black and White students learn better together:

“What is the theory, then, that the students would benefit from African American students? Is it enough that they have Hispanic or Asian students?” Alito asked.

The central arguments against the desegregation plans were that the government should not be involved in assigning students by race, and that the school districts will diversify naturally. Paul Clement, the U.S. solicitor general representing the Bush administration, suggested magnet schools and additional resources as a way to decrease segregation.

The main rebuttal was that integration is popular with the community, good for society and that the schools would re-segregate in the absence of active programs.

“We don’t want to go backwards. We have a voluntary plan and we think it works,” says Francis J. Mellen, attorney for the Jefferson County School Board, in defense of the program. “Our opponents say the plan has not narrowed the Black/White achievement gap. We dispute that and we also think that the narrow achievement gap is not the only goal.”

On occasion, the attorneys arguing to end the desegregation programs seemed to trip themselves up in explaining how they approved of diversity but disapproved of government efforts to achieve it. Clement was challenged when he said he agreed that diversity was a good thing, but argued good was trumped by the bad brought on by government intervention and race-conscious measures.

That argument prompted Justice Ruth Bader Ginsburg to respond: “It’s hard for me to see how you have a racial objective but a nonracial means to get there. How would you get there without quotas?”

Outside the high court, students, civil rights activists and union members waved flags and marched in the chilly wind, mostly in support of preserving the voluntary desegregation programs.

In both cases, local education officials in urban school districts designed enrollment plans that encouraged racial diversity while still allowing children to attend neighborhood schools or a school of choice. Officials said such efforts were needed after the 1955 landmark decision, Brown vs. Board of Education, effectively failed to end segregated schools. Worsening the segregation were busing plans of the 1960s and 1970s, which experts say sped up White flight from inner city neighborhoods. Voluntary desegregation plans seemed to slow White flight and increase intermixing.

But the voluntary desegregation efforts were challenged by parent groups that filed lawsuits claiming that the consideration of race was a violation of the Equal Protection Clause of the 14th Amendment. The school districts have won in the federal, district and appellate courts, however, the Supreme Court agreed to review the issue when the parents appealed.

“The opponents equate race consciousness with racism,” Theodore Shaw, head of NAACP Legal Defense Fund and Educational Fund, said outside the courtroom. “It’s a bold-faced lie, steeped in ignorance, and a betrayal of Brown vs Board of Education.”

In defense of the Kentucky school program, Mellen, the attorney for the Jefferson County Board of Education, called his school district a “success story,” citing surveys that demonstrate its popularity with Black and White parents.

“Our board feels very strongly that there’s is a compelling interest. We have a community that supports racial integration. In 1975, they opposed it, sometimes violently. Today parents like this, both Black and White. We still have some racial issues in Jefferson County. We think this plan does something to help this.” 

The court’s most conservative member, Justice Antonin Scalia, seemed at one point to defend diversity initiatives: “Is there anything unconstitutional about designing a mingling of the races and having policies to achieve a racial mix?” But he later seemed to criticize the idea that race be a deciding factor.

As might be expected, Justice Stephen Breyer frequently came to the defense of race-based programs that support diversity. Justice Clarence Thomas was the only member to not ask a question, as he almost never does.

A decision is due this spring.

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