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Legal Experts Await Supreme Court’s Ruling

Legal Experts Await Supreme Court’s Ruling
On Race-Conscious Admissions in Public Schools

By Christina Asquith

Does a Black student improve educationally by sitting next to a White student in class? Should local school boards force their communities to integrate?

These controversial and compelling questions are among those being debated as the U.S. Supreme Court deliberates over the school desegregation plans in Louisville, Ky., and Seattle.

Those issues, however, are not likely to be the ones that will decide the court’s vote, which many observers expect will come down against the school districts.

For the five conservative justices who make up the majority of the court — Chief Justice John Roberts and Justices Samuel Alito Jr., Anthony Kennedy, Antonin Scalia and Clarence Thomas — the primary question is whether the consideration of race in school assignments violates the 14th Amendment’s guarantee of equal protection. In the 1954 Brown v. Board of Education case, the answer was “yes.” And so the justices will probably say the answer should be “yes” again today. The only difference is who is being helped and who is being harmed, say opponents of the school district desegregation plans.

In Brown, the Supreme Court upheld the idea that separate facilities are inherently unequal. So, it is with the utmost irony, civil rights activists say, that the case is now being evoked to impede integration.

“It’s a fundamental disagreement about the meaning of the Brown case,” says Philip Tegeler, executive director of the Poverty  Race Research Action Council. “It’s the interpretation of Brown v. Board of Education as standing as a prohibition on considering race.”

The general reaction to the dual legal challenges have been “concern and alarm,” says Tegeler. “Exasperation” might also capture current sentiment. Given the depth of segregation across the U.S. school system, the desegregation plans in the two cases — Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Public Schools — are considered small steps towards real change. Immediately after Brown was passed, the Supreme Court supported sweeping efforts to end segregated education. Those rulings have slowly been overturned across the United States even as school systems became more segregated in the 1990s.

Justice Stephen Breyer appeared visibly frustrated during oral arguments, citing a 1972 case in which the court ruled that a school board “could well conclude that to prepare students to live in a pluralistic society each school should have a prescribed ration of Negro to White students reflecting the proportion of the district as a whole.” He added that that conclusion was “far more radical than anything that’s at issue here.”

While hundreds of scholars and civil rights activists filed briefs arguing to uphold the desegregation plans, no group was able to say definitively how many desegregation plans are in school districts, nor how sweeping an effect the court’s ruling might have in making schools more segregated. The Seattle and Louisville cases also haven’t received the same level of public attention as 2003’s twin higher education affirmative action lawsuits, Gratz v. Bollinger and Grutter v. Bollinger.

In trying to emphasize the conservative nature of their desegregation plans, the defense attorneys perhaps underplayed the stakes involved, says Stephen Menendian, an attorney and research associate at the Kirwin Institute.

“The plans were modest and defended on modest grounds,” he says. “The attorney thought that in emphasizing the modesty of the plans, they would emphasize the fact that these plans were narrow and the benefits outweigh the harms. They deemphasized the harms of segregation.”

In Seattle, the 46,000-student district used a “racial tiebreaker” policy in which race was used as a criterion for admission when demand at an open-enrollment school outpaced capacity. When White children were denied admission to one high school in favor of minority students who lived further away, angry parents sued.

In Louisville, parent Crystal Meredith claims the district’s policy denied her son, Joshua, a transfer to a better school because he is White.

Many legal experts say the Supreme Court will likely vote to strike down race-conscious admission policies in public schools, due in part to the addition this year of Roberts and Alito to the bench. The two conservative justices replace former Chief Justice William Rehnquist, who died last year, and former Justice Sandra Day O’Connor, who retired officially when Alito was confirmed as her replacement.

“I don’t think the [defense] attorneys did anything wrong,” says Mike Allen, a professor at Stetson University College of Law. “What doomed their cases was Justice O’ Connor retiring.”

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