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Copyright c 2006 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VII. CIVIL RIGHTS

In This Section:

New Case: 05-908 Parents Involved in Community Schools v. Seattle School Dist. No. 1

Synopsis and Question Presented p. 436

New Case: 05-915 Meredith v. Jefferson County Boardof Education

Synopsis and Question Presented p. 450

"Justices to Hear Cases of Race-Conscious School Placements" p. 465 Charles Lane

"Court to Weigh Race as Factor in School Rolls" p. 468 Linda Greenhouse

"Supreme Court Will Hear Affirmative-Action Cases With Potentially Broad Meaning for Higher Education" p. 470 Jeffrey Selingo

"An Unanswered, Delicate Race Question" p. 472 Lyle Denniston

"The Alito Difference" p. 475 Bruce Fein

"Perhaps Not All Affirmative Action Is Created Equal" p. 477 Jeffrey Rosen

"Ninth Circuit, in En Banc Ruling, Allows Use of Race As 'Tiebreaker' in High School Pupil Assignments" p. 480

Metropolitan News

"Rulings may back Seattle schools' racial tiebreaker" p. 482 Keith Ervin

"On the Docket: Meredith, Crystal v. Jefferson County Bd. of Education, et al." p. 485 David Gialanella

"Schools' Efforts Hinge on Justices' Ruling in Cases on Race and School Assignments" Sam Dillon p. 487

434 "Court backs Lynn use of race in school plan" p. 491 Shelley Murphy and Maria Sacchetti

435 Parents Involved in Community Schools v. Seattle School Dist. No. 1

(05-908)

Ruling Below: (ParentsInvolved in Community Schools, Petitionerv. Seattle School District No. 1, et al., 426 F.3d 1162 (9h Cir. C.A. 2005), cert granted 126 S. Ct. 2351, 74 U.S.L.W. 3676 [2006]).

A group of parents with children in defendant's school district challenged the constitutionality of the school district's plan which selected children by race to enter public high schools to maintain a balanced racial proportion in that school. The parents claimed that by denying students enrollment in a public high school on the basis of race this plan violated the Equal Protection Clause of the Fourteenth Amendment as well as the Washington Civil Rights Act by discriminating on the basis of race. The Ninth Circuit Court upheld the plan by applying Grutter v Bollinger, finding that racial diversity in high schools is a compelling interest that justifies the use of race, and that the plan was narrowly tailored to accomplish the goal of racially balanced high schools.

Questions Presented: 1. Whether the rationale for promoting student body viewpoint diversity in institutions of higher education, as discussed in Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), should be limited and not extended into the context of elementary and secondary public schools. 2. Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? 3. May a school district that is not racially segregated and that normally permits a student to attend any high school of her choosing, deny a child admission to her chosen school solely because of her race in an effort to achieve a desired racial balance in particular schools, or does such racial balancing violate the Equal Protection Clause of the Fourteenth Amendment?

PARENTS INVOLVED IN COMMUNITY SCHOOLS, Petitioner, Plaintiff-counter-defendant - Appellant V. SEATTLE SCHOOL DISTRICT NO. 1, et al. Defendants-counter-claimants - Appellees

United States Court of Appeals for the Ninth Circuit

Decided June 21, 2005

[Excerpt: some footnotes and citations omitted] FISHER, Circuit Judge: open choice, noncompetitive, public high school assignment plan crafted by Seattle This appeal requires us to consider whether School District Number 1 (the "District") the use of an integration tiebreaker in the violates the federal Constitution's Equal

436 Protection Clause. Our review is guided by voluntarily explored measures designed to the principles articulated in the Supreme end de facto segregation in the schools and Court's recent decisions regarding provide all of the District's students with affirmative action in higher education, access to diverse and equal educational Grutter v. Bollinger, 539 US. 306, 156 L. opportunities. Ed. 2d 304, 123 S. Ct. 2325 (2003), and [The court recounted the history that led to Gratz v. Bollinger, 539 US. 244, 156 L. Ed. the adoption of the current student 2d 257, 123 S. Ct. 2411 (2003), and the assignment plan.] Court's directive that "context matters when reviewing race-based governmental action under the Equal Protection Clause." Grutter, 539 US. at 327. We conclude that the District has a compelling interest in securing the educational and social benefits The Board adopted the current open choice of racial (and ethnic) diversity, and in plan (the "Plan") for the 1998-99 school ameliorating racial isolation or concentration year. Under the Plan, students entering the in its high schools by ensuring that its ninth grade may select any high school in assignments do not simply replicate Seattle's the District. They are assigned, where segregated housing patterns. We also possible, to the school they list as their first conclude that the District's Plan is narrowly choice. If too many students choose the tailored to meet the District's compelling same school as their first choice, resulting in interests. "oversubscription," the District assigns students to each oversubscribed school based on a series of tiebreakers. If a student I. Background is not admitted to his or her first choice A. Seattle Public Schools: A Historical school as a result of the tiebreakers, the Perspective District tries to assign the student to his or her second choice school, and so on. . . . Seattle is a diverse community. Students not assigned to one of their chosen Approximately 70 percent of its residents schools are assigned to the closest school are white, and 30 percent are nonwhite. with space available; students who list more Seattle public school enrollment breaks choices are less likely to receive one of these down nearly inversely, with approximately "mandatory" assignments. The most recent 40 percent white and 60 percent nonwhite version of the Plan, which the School Board students. reviews annually, is for the 2001-02 school The District operates 10 four-year public year and is the subject of this litigation. high schools. . . . For over 40 years, the B. The Plan District has made efforts to attain and maintain desegregated schools and avoid the . . . For the academic year 2000-01, racial isolation or concentration that would approximately 82 percent of students ensue if school assignments replicated selected one of the oversubscribed schools Seattle's segregated housing patterns. Since as their first choice, while only about 18 the 1960s, while courts around the country percent picked one of the undersubscribed ordered intransigent school districts to high schools as their first choice. Only when desegregate, Seattle's School Board oversubscription occurs does the District 437 become involved in the assignment process. incoming students entering Seattle high schools in the 2000-01 school year, If a high school is oversubscribed, all approximately 300 were assigned to an students applying for ninth grade are oversubscribed high school based on the admitted according to a series of four race-based tiebreaker. tiebreakers, applied in the following order: First, students who have a sibling attending In addition to changing the trigger point for that school are admitted. In any given the 2001-02 school year to plus or minus 15 oversubscribed school, the sibling tiebreaker percent, the District also developed a accounts for somewhere between 15 to 20 "thermostat," whereby the tiebreaker is percent of the admissions to the ninth grade applied to the entering ninth grade student class. population only until it comes within the 15 percent plus or minus variance. Once that Second, if an oversubscribed high school is reached, the District "turns-off' the racially imbalanced-meaning that the racial point is race-based tiebreaker, and there is no further make up of its student body differs by more of a student's race in the than 15 percent from the racial make up of consideration process. The tiebreaker does not the students of the Seattle public schools as assignment a whole-and if the sibling preference does apply, and race is not considered, for after the not bring the oversubscribed high school students entering a high school within plus or minus 15 percent of the ninth grade (e.g., by transfer). District's demographics, the race-based The District estimates that without the race- tiebreaker is "triggered" and the race of the based tiebreaker, the nonwhite populations applying student is considered. (For the of the 2000-01 ninth grade class at Franklin purposes of the race-based tiebreaker, a would have been 79.2 percent, at Hale 30.5 student is deemed to be of the race specified percent, at Ballard 33 percent and at in his or her registration materials.) Thus, if Roosevelt 41.1 percent. Using the race- a school has more than 75 percent nonwhite based tiebreaker, the actual nonwhite students (i.e., more than 15 percent above populations of the ninth grade classes at the the overall 60 percent nonwhite student same schools respectively were 59.5 population) and less than 25 percent white percent, 40.6 percent, 54.2 percent and 55.3 students, or when it has less than 45 percent percent. nonwhite students (i.e., more than 15 percent below the overall 60 percent nonwhite student population) and more than 55 percent white students, the school is considered racially imbalanced. II. Discussion A. Strict Scrutiny We review racial classifications under the strict scrutiny standard, which requires that The race-based tiebreaker is applied to both the policy in question be narrowly tailored white and non-white students. . . . These to achieve a compelling state interest. The assignments accounted for about 10 percent strict scrutiny standard is not "strict in of admissions to Seattle's high schools as a theory, but fatal in fact." Adarand, 515 US. whole. That is, of the approximately 3,000 at 237 (internal quotation marks omitted). 438 "Although all governmental uses of race are and social benefits of diversity are similar to subject to strict scrutiny, not all are those of a law school as articulated in invalidated by it." Grutter, 539 U.S. at 326- Grutter. The contextual differences between 27. . . . In evaluating the District's Plan public high schools and universities, under strict scrutiny, we also bear in mind however, make the District's interests the Court's directive that "context matters compelling in a similar but also significantly when reviewing race-based governmental different manner. action under the Equal Protection Clause." The Supreme Court in Grutter noted the Grutter, 539 U.S. at 326. importance of higher education in "preparing students for work and citizenship." 539 U.S. at 331. For a number of reasons, public secondary schools have an equal if not more important role in this The District's interests fit into two broad preparation. First, underlying the history of categories: (1) the District seeks the desegregation in this country is a legal affirmative educational and social benefits regime that recognizes the principle that that flow from racial diversity; and (2) the public secondary education serves a unique District seeks to avoid the harms resulting and vital socialization function in our from racially concentrated or isolated democratic society.... schools. Second, although one hopes that all students 1. Educationaland Social Benefits that Flow who graduate from Seattle's public schools from Diversity would have the opportunity to attend institutions of higher learning if they so The District has established that racial desire, a substantial number of Seattle's diversity produces a number of compelling public high school graduates do not attend educational and social benefits in secondary college. For these students, their public high education. First, the District presented school educational experience will be their expert testimony that in racially diverse sole opportunity to reap the benefits of a schools, "both white and minority students diverse learning environment.... experienced improved critical thinking skills-the ability to both understand and Third, the public school context involves challenge views which are different from students who, because they are younger and their own." more impressionable, are more amenable to the benefits of diversity. See Comfort, 418 Second, the District demonstrated the F.3d at 15-16 ("In fact, there is significant socialization and citizenship advantages of evidence in the record that the benefits of a racially diverse schools. School officials, racially diverse school are more compelling relying on their experience as teachers and at younger ages."); Comfort v. Lynn School administrators, and the District's expert all Committee, 283 F. Supp. 2d 328, 356 (D. explained these benefits on the record.... Mass. 2003). The dissent insists that racial diversity in a public high school is not a compelling interest, arguing that Grutter endorsed a law school's compelling interest in diversity The District's interests in the educational only in some broader or more holistic sense. 439 To attain this broader interest, the dissent contends, the District may only consider race along with other attributes such as 2. Absence of Quotas socioeconomic status, ability to speak multiple languages or extracurricular talents. In Grutter, the Court approved the law We read Grutter, however, to recognize that school's plan, in part, because it did not racial diversity, not some proxy for it, is institute a quota, whereby a fixed number of valuable in and of itself. slots are reserved exclusively for minority groups, thereby insulating members of those In short, the District has demonstrated that it groups from competition with other has a compelling interest in the educational candidates. Although the law school's plan and social benefits of racial diversity similar did not seek to admit a set number or to those articulated by the Supreme Court in percentage of minority students, during the Grutter as well as the additional compelling height of the admission's season, the law educational and social benefits of such school would consult "daily reports" that diversity unique to the public secondary kept track of the racial composition of the school context. incoming class. The Court held that this 2. Avoiding the Harms Resulting from attention to numbers did not transform the Racially Concentratedor Isolated Schools law school plan into a quota, but instead The District's interest in achieving the demonstrated that the law school sought to affirmative benefits of a racially diverse enroll a critical mass of minority students in educational environment has a flip side: order "to realize the educational benefits of a avoiding racially concentrated or isolated diverse student body." Id. Similarly, we conclude that the District's 15 percent plus schools. . . . Research regarding desegregation has found that racially or minus variance is not a quota because it concentrated or isolated schools are does not reserve a fixed number of slots for characterized by much higher levels of students based on their race, but instead it poverty, lower average test scores, lower seeks to enroll a critical mass of white and levels of student achievement, with less- nonwhite students in its oversubscribed qualified teachers and fewer advanced schools in order to realize its compelling interests. courses - "with few exceptions, separate schools are still unequal schools." . . . a. No fixed number of slots Accordingly, the District's Plan strives to The District's race-based tiebreaker does not ensure that patterns of residential set aside a fixed number of slots for segregation are not replicated in the nonwhite or white students in any of the District's school assignments. Although District's schools. The tiebreaker is used Parents make much of the fact that "Seattle only so long as there are members of the a segregated school has never operated underrepresented race in the applicant pool system," and allege that "this is not a school for a particular oversubscribed school. If the court to review desegregation case," each number of students of that race who have the matter has concluded that because of applied to that school is exhausted, no Seattle's housing patterns, high schools in further action is taken, even if the 15 percent Seattle would be highly segregated absent variance has not been satisfied. That is, if race conscious measures.... the applicant pool has been exhausted, no students are required or recruited to attend a 440 particular high school in order to bring it broader compelling interests-achieving the within the 15 percent plus or minus range educational and social benefits of diversity for that year. and the benefits specific to the secondary school context, and discouraging a return to Moreover, the number of white and enrollment patterns based on nonwhite students in the high schools is Seattle's flexible and varies from school to school racially segregated housing pattern. and from year to year. This variance in the i. Need for race-based tiebreaker number of nonwhite and white students [The court discussed and rejected possible throughout the District's high schools is non race-based solutions and concluded that because, under the Plan, assignments are the race-based plan was necessary] based on students' and parents' preferences. The tiebreakers come into play in the assignment process only when a school is oversubscribed.... b. Criticalmass Although the District has the burden of [The court discussed the District's goal of demonstrating that its Plan is narrowly having a critical mass of both white and tailored, see Gratz, 539 U.S. at 270, it need nonwhite students enrolled.] not "exhaust[] every conceivable race- neutral alternative." Grutter, 539 U.S. at 339.

Accordingly, we conclude that the District's 15 percent plus or minus trigger point tied to the demographics of the Seattle school In sum, the District made a good faith effort population is not a quota. It is a context- to consider feasible race-neutral alternatives specific, flexible measurement of racial and permissibly rejected them in favor of a diversity designed to attain and maintain a system involving a sibling preference, a critical mass of white and nonwhite students race-based tiebreaker and a proximity in Seattle's public high schools. preference. Over the long history of the District's efforts to achieve desegregated 3. Necessity of the Plan and Race-Neutral schools, it has experimented with many Alternatives alternatives, including magnet and other Narrow tailoring also requires us to consider special-interest programs, which it continues the necessity of the race-based plan or to employ, and race-conscious districting. policy in question and whether there are But when a racially diverse school system is equally effective, race-neutral alternatives. the goal (or racial concentration or isolation is the problem), there is no more effective a. Necessity of the Plan means than a consideration of race to The District argues that the compelling achieve the solution. . . . The logic is self- interests that it seeks are directly served by evident: When racial diversity is a principal the race-based tiebreaker. The tiebreaker element of the school district's compelling allows the District to balance students' and interest, then a narrowly tailored plan may parents' choices among high schools with its explicitly take race into account. 441 4. Undue Harm A narrowly tailored plan ensures that no III. Conclusion member of any racial group is unduly For the foregoing reasons, we hold that the harmed. Parents argue that every student Plan adopted by the Seattle School District who is denied his or her choice of schools for high school assignments is constitutional because of the integration tiebreaker suffers and the use of the race-based tiebreaker is a constitutionally significant burden. We narrowly tailored to achieve the District's agree with the Supreme Court of compelling interests. Accordingly, we Washington, however, in its assessment that AFFIRM the district court's judgment. the District's Plan imposes a minimal burden that is shared equally by all of the District's students. Indeed, public schools, unlike universities, have a tradition of compulsory CONCURING: assignment. KOZINSKI, Circuit Judge:

Moreover, it is undisputed that the race- based tiebreaker does not uniformly benefit one race or group to the detriment of another. At some schools, white students are The Seattle plan.. .is not meant to oppress given preference over nonwhite students, minorities, nor does it have that effect. No and, at other schools, nonwhite students are race is turned away from government given preference over white students.... service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt In sum, because (1) the District is entitled to to give members of particular races political assign all students to any of its schools, (2) power based on skin color. There is no no student is entitled to attend any specific competition between the races, and no race school and (3) the tiebreaker does not is given a preference over another. That a uniformly benefit any race or group of student is denied the school of his choice individuals to the detriment of another, the may be disappointing, but it carries no racial tiebreaker does not unduly harm any stigma and says nothing at all about that students in the District. individual's aptitude or ability. The program does use race as a criterion, but only to 5. Sunset Provision ensure that the population of each public A narrowly tailored plan must be limited not school roughly reflects the city's racial only in scope, but also in time. Grutter, 539 composition. US. at 342. The Court held in Grutter that Because the Seattle plan carries none of the this durational requirement can be met by baggage the Supreme Court has found "periodic reviews to determine whether objectionable in cases where it has applied racial preferences are still necessary to strict scrutiny and narrow tailoring, I would achieve student body diversity." Id. The consider the plan under a rational basis includes such reviews.... District's Plan standard of review. By rational basis, I don't mean the standard applied to economic regulations, where courts shut their eyes to 442 reality or even invent justifications for upholding government programs, but robust and realistic rational basis review, where courts consider the actual reasons for the DISSENTING: BEA, Circuit Judge, with plan in light of the real-world circumstances whom Circuit Judges KLEINFELD, that gave rise to it. TALLMAN and CALLAHAN join: Under this standard, I have no trouble finding the Seattle plan constitutional. Through their elected officials, the people of Seattle have adopted a plan that emphasizes school choice, yet tempers such choice I agree with the majority that the District's somewhat in order to ensure that the schools use of the racial tiebreaker is a racial reflect the city's population. Such stirring of classification, and all racial classifications the melting pot strikes me as eminently are subject to "strict scrutiny" review under sensible. the Equal Protection Clause. Yet the majority conceives of strict scrutiny as some type of relaxed, deferential standard of review. I view it differently.

When the Supreme Court does review the Seattle plan, or one like it, I hope the justices will give serious thought to bypassing strict-and almost always The right to equal protection provides a deadly- scrutiny, and adopt something more liberty; it represents freedom from akin to rational basis review. Not only does government coercion based upon racial a plan that promotes the mixing of races classifications. Thus, under strict scrutiny, deserve support rather than suspicion and all racial classifications by the government, hostility from the judiciary, but there is regardless of purported motivation, are much to be said for returning primacy on "inherently suspect," and "presumptively matters of educational policy to local invalid,". They are permissible only where officials.... the government proves their use is "narrowly tailored to further compelling governmental interests." It follows, then, that the government carries the burden of proving that its use of racial When it comes to a plan such as this-a plan classifications satisfies strict scrutiny. that gives the American melting pot a Despite this formidable standard of review, healthy stir without benefiting or burdening the majority does not hesitate to endorse the any particular group-I would leave the District's use of the racial tiebreaker. Rather decision to those much closer to the affected than recognizing the protections of the community, who have the power to reverse individual against governmental racial or modify the policy should it prove classifications, the majority instead endorses unworkable. It is on this basis that I would a rigid racial governmental grouping of high affirm the judgment of the district court. school students for the purpose of attaining 443 racial balance in the schools. For the reasons The second exception is also inapplicable, expressed below, I do not share in the albeit not so directly acknowledged. At oral majority's confidence that such a plan is argument, the District conceded that it is not constitutionally permissible. asserting the Grutter "diversity" interest; the majority recognizes this in stating the District's asserted interest is "significantly III. different" in some ways from the interest The District contends it has a valid asserted in Grutter. Nonetheless, the compelling governmental interest in using majority concludes those differences are racial balancing to achieve "the educational inconsequential because of the different and social benefits of racial . . . diversity" "context" between high schools and within its high schools and avoid "racially universities, and the District's asserted concentrated" schools. The District argues interest is a compelling governmental its interest will enhance student discussion interest in its own right. of racial issues in high school and will foster Not so. The very differences between the cross-racial socialization and understanding, Grutter "diversity" interest and the District's both in school and later in the students' lives. asserted interest illustrate why the latter violates the Equal Protection Clause as opposed to the former. The Grutter "diversity" interest focuses upon the individual, of which race plays a part, but not the whole. The District's asserted The [U.S. Supreme] Court has endorsed two interest, however, focuses race-based compelling only upon race, governmental running afoul of equal protection's focus interests in the public education context. upon the individual. First, the Court has allowed racial classifications to remedy past racial B. imbalances in schools resulting from past de In Grutter and Gratz, the Court made clear jure segregation. Second, the Court has that the valid compelling interest in allowed undergraduate and graduate "diversity" does not translate into a valid universities to consider race as part of an compelling interest in "racial diversity." The overall, flexible assessment of an "diversity" interest is not an interest in individual's characteristics to attain student simple ethnic diversity, in which a specified body diversity. percentage of the student body is in effect Besides those two valid compelling guaranteed to be members of selected ethnic interests, the Court has struck down every groups . . . . Rather, the diversity that other asserted race-based compelling interest furthers a compelling state interest that has come before it. encompasses a far broader array of qualifications and characteristics of which Thus, we face a landscape littered with racialor ethnic origin is but a single though rejected asserted "compelling interests" important element. Grutter, 539 US. at 324- requiring race-based determinations, but 25 (emphasis added). with two exceptions still standing. The first exception is inapplicable here because the The Grutter "diversity" interest focuses Seattle schools have never been de jure upon the individual, which can include the segregated. applicant's race, but also includes other 444 factors, such as the applicant's family That argument, however, is based on the background, her parent's educational history, stereotype that all white children express whether she is fluent in other languages, traditional white viewpoints and exhibit whether she has overcome adversity or traditional white mannerisms; all nonwhite hardship, or whether she has unique athletic children express opposite nonwhite or artistic talents. See 539 U.S. at 338. Such viewpoints and exhibit nonwhite a focus is consistent with the Equal mannerisms, and thereby white and Protection Clause, which protects the nonwhite children will better understand individual, not groups. each other. Yet there is nothing in the racial But here, the District's operation of the tiebreaker to ensure such viewpoints and racial tiebreaker does not consider the mannerisms are represented within the applicant as an individual. To the contrary, preferred student body ratio. As noted in the racial tiebreaker considers only whether Grutter, the only way to achieve diverse the student is white or nonwhite. While the viewpoints and mannerisms is to look at the Grutter "diversity" interest pursues genuine individual student.... diversity in the student body (of which race is only a single "plus" factor), the District pursues an interest which considers only racial diversity, i.e., a predefined grouping of races in the District's schools. Such an Besides the District's reliance on racial interest is not a valid compelling interest; it stereotypes, there is good reason is simple racial balancing, forbidden by the categorically to forbid racial balancing. The Equal Protection Clause. process of classifying children in groups of color, rather than viewing them as individuals, encourages "notions of racial inferiority" in both white and nonwhite children and incites racial hostility. Indeed, But here, the District's concept of racial those risks are particularly great here diversity is a predetermined, defined ratio of because of the blunt nature of the racial white and nonwhite children. The racial tiebreaker. The District's racial grouping of tiebreaker works to exclude white students students, either as white or nonwhite, from schools that have a 50-55% white assumes that each minority student is the student body (depending on the tiebreaker same, regardless whether he is African- trigger used in a particular year), and works American, Asian-American, Latino, or to exclude nonwhite students from schools Native American; the only difference noted with a 70-75% nonwhite student body by the District is that the minority student is (depending on the tiebreaker trigger used). not white.... Thus, the District's concept of racial Unlike a voluntary decision by parents to diversity does not permit a school with a expose their children to individuals of student body that is too white, or a school different races or background, the District with a student body that is too nonwhite. classifies each student by skin color and The District argues its concept of racial excludes certain students from particular diversity is necessary to foster classroom schools-solely on the basis of race-to discussion and cross-racial socialization. ensure those schools remain racially 445 balanced. Even if well intentioned, the the "context" here is different. We are not District's use of racial classifications in such faced with a university's "academic a stark and compulsory fashion risks freedom," which arises from "a perpetuating the same racial divisions which constitutional dimension, grounded in the have plagued this country since its founding First Amendment, of educational autonomy," and which includes the freedom to select its student body. Id. We instead consider a public high school's admissions The District's asserted interest may be plan which admits or excludes students from supported by noble goals. But the particular schools solely on the basis of their stereotypes on which it is based, and the race. For several reasons, we should not risks that it presents, make that interest far defer to such a plan. from compelling. First, other than for race-conscious C. university admissions based on holistic diversity, deference to a government actor is The sociological evidence presented by the inconsistent with strict scrutiny. District, relied upon strongly by the majority, does not change my view. The majority discusses much of the evidence that supports the District's position that racially balanced schools foster cross-racial socialization and understanding in school Moreover, there is a crucial difference and later in the students' lives. Yet the between the "robust exchange of ideas" majority puts aside the other evidence theory referenced in Grutter and the suggesting there is no definitive agreement District's claim that its interest "brings as to the beneficial effects of racial balance different viewpoints and experiences to in K-12 schools, that the benefits attributed classroom discussions and thereby enhances to racially balanced schools are often weak, the educational process." The District and that any benefits do not always have a applies the racial tiebreaker only to entering direct correlation to racial balance.... ninth-grade students. It is self-evident that classroom discussion plays a significantly more vital role in universities with their typical dialectic or Socratic teaching method, than in ninth-grade high school But despite the inconsistencies in the courses with their typical didactic or rote sociological evidence and the vivid risks of teaching method. the District's asserted interest, the majority Last, the District's claim that its asserted implicitly defers to the District's position. interest helps to foster cross-racial Grutter took a similar approach, socialization and understanding later in the emphasizing that its endorsement of the students' lives is a sociological judgment "diversity" interest relied in large part upon outside the expertise of the District's deference to the educational judgment of the educators.... Michigan Law School. Strict scrutiny cannot remain strict if we Yet perhaps to steal a line from the majority, defer to judgments not even within the 446 particular expertise or observation of the pertinent elements of diversity in light of the party being scrutinized. Hence, deference particular qualifications of each applicant, is not due to the District regarding the and to place them on the same footing for benefits the District contends are attributable consideration, although not necessarily to its claimed interest. according them the same weight." Id. at 334. Here, the racial tiebreaker works to admit or exclude high school students from certain oversubscribed schools solely on the basis of Iv their skin color. No other consideration affects the operation of the racial tiebreaker. Even if the District's asserted interest were a compelling governmental interest, the means used by the District must still be narrowly [The dissent notes the program categorizes tailored to serve that interest. See Grutter, students broadly as "white" or "nonwhite" 539 US. at 333.... and suggests this is not narrowly tailored.] A. The first narrow-tailoring factor requires the District to engage in an individualized consideration of each applicant's B. characteristics and qualifications. See Grutter, 539 U.S. At 337.... The second narrow-tailoring factor prohibits the use of quotas based upon race. Grutter, Yet the majority concludes that 539 U.S. at 334. A quota is defined as "a individualized consideration of each program in which a certain fixed number or applicant is irrelevant here "because of the proportion of opportunities are reserved contextual differences between institutions exclusively for certain minority groups. of higher learning and public high schools." Quotas impose a fixed number or percentage Majority op. at 36. I could not disagree which must be attained, or which cannot be more. By removing consideration of the exceeded." Id. at 335. individual from the narrow tailoring analysis, the majority threatens to read the Here, when a District school is oversubscribed and "integration Equal Protection Clause out of the positive"- Constitution. It is the very nature of equal i.e., the white or nonwhite student body of protection to require individualized the school deviates by plus or minus 10% or consideration when the government uses 15% (depending on the school year) of the racial classifications: "the Fourteenth preferred 40% white/60% nonwhite ratio- the District Amendment "protects persons, not groups." uses the racial tiebreaker to admit students whose presence will move Grutter, 539 U.S. at 326 (quoting Adarand, the overall student body closer to the 515 U.S. at 227) (emphasis in original). ... preferred ratio. ... Individualized consideration of an applicant does not require an admissions program to By its nature, the tiebreaker aims for a rigid, be oblivious to race; the program may predetermined ratio of white and nonwhite consider race, but in doing so, it must students, and thus operates to reach "a fixed remain "flexible enough to consider all number or percentage." (emphasis supplied). 447 Gratz specifically rejected such a plan as not narrowly tailored. See 539 US. at 270. Yet the majority argues no quota exists here because the racial tiebreaker "does not set aside a fixed number of slots for nonwhite or D. white students," nor is the 10 or 15% The fourth narrow-tailoring factor requires variance always satisfied (generally because that the District's use of the racial tiebreaker there are insufficient numbers of white or "must not unduly burden individuals who nonwhite students needed to balance the are not members of the favored racial and school). Majority op. at 46. With respect, the ethnic groups." The majority adjusts this majority misses the point. A quota does not test slightly to consider "any racial group," become less of a quota because there are an rather than just members of the disfavored insufficient number of whites or nonwhites group. Because the racial tiebreaker to fill the preselected spots. The District disadvantages both white and nonwhite created a quota when it established the children, I agree that the modification is predetermined, preferred ratio of white and valid. But unlike the majority, I conclude the nonwhite students.... District's operation of the racial tiebreaker fails this factor as well. The racial tiebreaker unduly burdens thirteen- and fourteen-year-old school C. children by (1) depriving them of their choice of school, and (2) imposing on them The third narrow-tailoring factor requires tedious cross-town commutes, solely upon the District to have engaged in a "serious, the basis of their race. good-faith consideration of workable race- neutral alternatives." See id at 339. The majority concludes the District made such an effort. For several reasons, I disagree. First, the District's superintendent flatly admitted the District did not engage in a Yet the majority discounts the burdens serious, good-faith consideration of race- imposed by the racial tiebreaker, concluding neutral alternatives. that (1) the "minimal burden" of the tiebreaker is shared equally among white The record supports this concession. The and nonwhite students; (2) no student is District never asked its demographer to entitled to attend any specific school in any conduct any analysis regarding the effect of event; and (3) the tiebreaker does not using a race-neutral lottery. The District also uniformly benefit one race over the other never asked its demographer to conduct any because the tiebreaker operates against both analysis regarding a diversity program with whites and nonwhites. Regarding the first non-racial indicia such as a student's point, the U.S. Supreme Court has long eligibility for free lunch or the students's rejected the notion that a racial classification socioeconomic background. [The dissent which burdens races equally is any less goes on to discuss various other alternatives objectionable under the Equal Protection the District did not consider.] Clause....

448 Second, I think I have already disposed of admissions policies and periodic reviews to the majority's argument that no student is determine whether racial preferences are entitled to attend any specific District still necessary to achieve student body school. The students and parents clearly diversity." 539 U.S. at 342 (emphasis value some of the District's schools above added). Periodic reviews are not enough; the others, and limiting access to those there must be some "durational higher quality schools on the basis of race is requirement," some "logical end point," to just the same as any other preferential racial the racial classifications. classification. Third, I agree the tiebreaker does not uniformly benefit one race over the other and can exclude both white and nonwhite students from the preferred schools. Yet that V. does not lessen the injury of being subject to a racial classification. Equal protection is an As pointed out in the majority opinion, other individual right, and whenever the District courts have concluded that a school district's tells one student, whether white or nonwhite, use of a racial tiebreaker in search of racial he or she cannot attend a particular school balance in the student body passes muster on the basis of race, that action works an under the Equal Protection Clause. I injury of constitutional proportion. respectfully disagree. The District's use of the racial tiebreaker to achieve racial E. balance in its high schools infringes upon The fifth and final narrow-tailoring factor each student's right to equal protection and requires the District's use of the racial tramples upon the unique and valuable tiebreaker to "be limited in time," and "have nature of each individual. We are not a logical end point." See Grutter, 539 U.S. at different because of our skin color; we are 342. different because each one of us is unique. That uniqueness incorporates our opinions, our background, our religion (or lack thereof), our thought, and our color. Grutter attempted to strike a balance between the individual protections of equal protection Citing Grutter, the majority contends the and being conscious of race even when racial tiebreaker satisfies this factor because looking at the individual. The District's use "this durational requirement can be met by of the racial tiebreaker, however, attempts periodic reviews to determine whether racial no such balance; it instead classifies each preferences are still necessary to achieve ninth-grade student solely by race. Because student body diversity," and the District of that, I must conclude such a program engages in such periodic reviews. Majority violates the Equal ProtectionClause. op. at 65. Yet citing Grutter in full shows that "the durational requirement can be met by sunset provisions in race-conscious

449 Meredith v. Jefferson County Board of Education

(05-915)

Ruling Below: (McFarlandv. Jefferson County Pub. Schs 330 F. Supp. 2D 834, upheld by McFarlandv. Jefferson County Public Schools, 416 F.3d 513 (6th Cir. 2005), cert granted 126 S. Ct. 2351, 74 U.S.L.W. 3676 [2006]).

The Jefferson County Public Schools system voluntarily adopted a plan to assign students to its schools based on a number of factors, including race, in order to maintain a certain proportion of black students at each school. Plaintiffs are the parents of students in the Jefferson County public schools who claim that the school student assignment plan violates the rights of their children under the Equal Protection Clause of the United States Constitution to be admitted to a school without consideration of their race. Because the plan did not conflict with Grutter v Bollinger and was narrowly tailored, the court allowed the school board to take race into account. The selection process for the school board's traditional magnet schools was found to not be narrowly tailored, and was ordered to be revised.

Question Presented: 1. Should Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of University of California v. Bakke, 438 U.S. 268 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003) be overturned and/or misapplied by the Respondent, the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (non-traditional) schools in the Jefferson County Public Schools? 2. Whether the race-conscious Student Assignment Plan with mechanical and inflexible quota systems of not less than 15% nor greater than 50% of African American students without individually or holistic review of any student, meets the Fourteenth Amendment requirement of the use of race which is a compelling interest narrowly tailored with strict scrutiny. 3. Did the District Court abuse and/or exceed its remedial judicial authority in maintaining desegregative attractiveness in the Public Schools of Jefferson County, Kentucky?

David McFARLAND, Parent and Next Friend of Stephen and Daniel McFarland, et al., Plaintiffs V. JEFFERSON COUNTY PUBLIC SCHOOLS, Defendants

United States District Court for the Western District of Kentucky

Decided June 29, 2004

[Excerpt: some footnotes and citations omitted] JOHN G. HEYBURN II, Chief Judge: maintained an integrated school system under a 1975 federal court decree. After For twenty-five years, the Jefferson County release from that decree four years ago, the Public Schools ("JCPS" or "the Board") JCPS elected to continue its integrated

450 schools through a managed choice plan that In most respects, the JCPS student includes broad racial guidelines ("the 2001 assignment plan also meets the narrow Plan"). This case arises because some tailoring requirement. Its broad racial students and their parents say that the guidelines do not constitute a quota. The Board's student assignment plan violates Board avoids the use of race in predominant their rights under the Equal Protection and unnecessary ways that unduly harm Clause of the United States Constitution. members of a particular racial group. The Board also uses other race-neutral means, such as geographic boundaries, special programs and student choice, to achieve I. SUMMARY racial integration.

... For guidance, the Court has focused on The student assignment process for the the divided opinions of the Supreme Court traditional schools is distinct from that in two recent cases: Grutter v. Bollinger, employed at all other programs and schools. 539 U.S. 306, 156 L. Ed. 2d 304, 123 S. Ct. In that process, JCPS separates students into 2325 (2003), and Gratz v. Bollinger, 539 racial categories in a manner that appears U.S. 244, 156 L. Ed. 2d 257, 123 S. Ct. completely unnecessary to accomplish its 2411 (2003). The first of these opinions objectives. To the extent the 2001 Plan upheld race-conscious admissions policies at incorporates these procedures, the Court the University of Michigan Law School; the concludes that it violates the Equal latter struck down different policies at the Protection Clause. The Board may continue University of Michigan's College of to administer the 2001 Plan in every respect Literature, Science and the Arts. These two in all of its schools, with the exception of its cases set out the requirement that any use of use of racial categories in the traditional race in a higher education admissions plan school assignment process. must further a compelling governmental interest and must be narrowly tailored to II. FACTUAL BACKGROUND meet that interest. The Court considered these principles in the slightly different Plaintiffs all have children who attend or context of an elementary and secondary have attended Jefferson County public school student assignment plan. schools and have participated in the student assignment process. Each, in different ways, JCPS meets the compelling interest is dissatisfied with the procedure or result of requirement because it has articulated some his or her child's assignment to a Jefferson of the same reasons for integrated public County public school. Plaintiffs seek to schools that the Supreme Court upheld in enjoin the use of racial guidelines under the Grutter. Moreover, the Board has described 2001 Plan, including the use of racial other compelling interests and benefits of categories in the traditional school integrated schools, such as improved student assignment process. This Court has stated education and community support for public that, because the student assignment plan schools, that were not relevant in the law applies at all grade levels in all school school context but are relevant to public settings in the Jefferson County schools, any elementary and secondary schools. ruling would necessarily apply to the entire school system.

451 desegregation decree, ordered JCPS to cease using racial quotas at Central High School, and ordered JCPS to complete any A. reevaluation and redesign of the admissions procedures in other magnet schools before JCPS is the 28th largest public school the beginning of the 2002-2003 school year. system in the United States. Its district Hampton II, 102 F. Supp. 2d 358, 377-81 boundaries mirror those of the new (W.D. Ky. 2000). Metropolitan Louisville which is now the 16th largest city in the nation. In 2003-2004, To comply with the Court's order, the Board about 97,000 students were enrolled in ended its use of racial quotas at Central High JCPS: approximately 5,000 in preschool School and at three other magnet schools . programs; 42,500 in elementary schools; The Board determined that the Court's order 21,650 in middle schools; 24,750 in high did not address the use of race at magnet schools; 2,100 in alternative schools; and traditional schools. In April 2001, after about 1,000 in special schools and special considering public feedback from opinion education centers. The racial profile of surveys and community meetings, the Board students subject to the 2001 Plan is about adopted the 2001 Plan. 34% Black and 66% White. III. THE 2001 STUDENT ASSIGNMENT PLAN

B. . . . The 2001 Plan contains three basic organizing principles: (1) management of This case and its legal predecessors are broad racial guidelines, (2) creation of inseparable from JCPS's ongoing school boundaries or "resides" areas and commitment to racial integration within its elementary school clusters, and (3) individual schools. One can find the maximization of student choice through complete legal and historical background of magnet schools, magnet traditional schools, this case in Hampton I, 72 F. Supp. 2d 753, magnet and optional programs, open 754-67 (W.D. Ky. 1999). [The court enrollment and transfers. Using these described this case. A 1975 court order principles, JCPS provides a form of directed the Board to implement a managed choice in student assignment for its desegregation plan. In 1996 the Board students individually and for the system as a revised its student assignment plan and whole. students and parents filed a lawsuit alleging the students were denied admission to a high A. school because of their race. The court concluded that the original desegregation The racial guidelines broadly influence the order was still in place, and the plaintiffs overall student assignment plan. This is not moved to dissolve the decree.] surprising since one of the Board's current stated goals under the 2001 Plan is to provide "substantially uniform educational resources to all students" and to teach basic In June 2000, this Court dissolved the 1975 skills and critical thinking skills "in a

452 racially integrated environment." To magnet elementary schools are grouped into accomplish these objectives, the 2001 Plan twelve clusters. The elementary schools in a requires each school to seek a Black student cluster, which includes a student's resides enrollment of at least 15% and no more than school, are designated as "cluster resides 50%. This reflects a broad range equally schools" for that student. Racial above and below Black student enrollment demographics have influenced the systemwide. boundaries for contiguous and non- contiguous resides areas and the Prior to any consideration of a student's composition of some elementary school race, a myriad of other factors, such as place clusters. Elementary schools are clustered so of residence, school capacity, program that combined attendance zones, assuming popularity, random draw and the nature of normal voluntary choices, will produce at the student's choices, will have a more each school student populations somewhere significant effect on school assignment. The within the racial guidelines. guidelines mostly influence student assignment in subtle and indirect ways. For Each non-magnet middle and high school instance, where the racial composition of an has its own resides area. There are no entire school lies near either end of the racial clusters at those levels. Apart from age, guidelines, the application of any student for graduation from previous grade and open enrollment, transfer or even to a residence, no selection criteria govern magnet program could be affected. In a admission of any student to his or her specific case, a student's race, whether Black resides school or a school within his or her or White, could determine whether that cluster. The geographic boundaries of student receives his or her first, second, third resides areas and cluster schools determine or fourth choice of school. most school assignments.

For the most part, the guidelines provide C. administrators with the authority to facilitate, negotiate and collaborate with Student choice may be the most significant principals and staff to maintain schools element of the 2001 Plan. In addition to a within the 15-50% range. choice of geographic location, JCPS offers students the choice of numerous and varied B. specialized schools and programs.

Geographic boundaries greatly influence [The court discussed various magnet student assignments. Each JCPS school, programs students can choose in the [except the traditional program schools,] Jefferson district] has a designated geographic attendance area, which is called its "resides area." Each student is assigned a "resides school" based upon the residence address of his or her An important part of student choice is the parent(s) or guardian. In 2002-2003, 57.5% ability of virtually any student to apply for of all students attended their resides school. open enrollment (high school freshmen only) or transfer to any non-magnet school. At the elementary school level, all non- The process for each is similar. After the

453 initial assignment process is complete, any position on a computer-generated random student may apply for transfer to any non- draw list. magnet school. Rising freshmen may apply for open enrollment to any non-magnet high E. school. If the student is accepted, the receiving school becomes the student's Traditional schools have a more complex resides school. In each case, the receiving admissions process, which combines school makes the original decision to accept elements of student choice, program and or reject the applicant. The number of school capacity, geographic boundaries, students actually requesting transfer or open pure chance, broad racial guidelines and the enrollment is quite small. use of racial categories to separate applicants. Some Plaintiffs initiated this D. litigation because they object to JCPS's use of the racial guidelines in general, and the School geographic boundaries and student use of racial categories in particular, in the choice interact to create a huge array of traditional school admissions process. choices and flexibility within the assignment process. [The court described various JCPS first developed traditional programs educational options available to students in for the 1976-1977 school year. Traditional the district]. schools offer the same comprehensive curriculum offered by every other non- magnet school. These schools emphasize basic skills in a highly structured The admissions process for non-traditional educational environment, discipline and magnet schools, magnet programs and dress codes, learning with daily follow-up optional programs at all grade levels is assignments, and concepts of courtesy, relatively straightforward. Admissions patriotism, morality and respect for others. . decisions for the four non-traditional magnet schools are based upon: (1) objective criteria established by the school or program, such The traditional program is offered as the as a survey and/or essay, recommendations sole structure at nine schools: four by adults, a work sample or audition, elementary, three middle and two high attendance data, course grades and CATS schools. In addition, JCPS offers the and/or standardized test scores; (2) available traditional program at two resides space in the school or program; and (3) for elementary schools, Foster and Maupin. In students applying to Brown, position on a 2002-2003, about 9.3% of all JCPS students computer-generated random draw list and were enrolled in the traditional program. residence within a zip code that will make the student body representative of the entire 1. county. In addition to objective criteria and program capacity, the racial guidelines are a Place of residence and position on the factor in admission to all the other magnet random draw lists are the primary factors for and optional programs. Admission to one of entry into the traditional program. With the the middle school Math, Science and exception of the programs at Foster and Technology Programs is also based upon Maupin, which are open to students

454 districtwide, each traditional elementary and is applied to all other schools. Applicants are middle school has its own geographic zone. separated and randomly sorted into four lists Students attend the traditional school in their at each grade level: Black Male, Black geographic zone. After initial acceptance, Female, White Male and White Female. the so-called "pipeline" becomes the dominant influence in traditional school The principal has discretion to draw assignment. The "pipeline" guarantees each candidates from different lists in order to current traditional school student a spot in stay within the racial guidelines for the the next grade level without submitting a entire school student population. The racial new application. The "pipeline" enlarges in guidelines apply to the entire school, not per each grade, thus creating openings for new grade. Generally speaking, depending on applicants to the traditional program. how many spaces are available for new applicants, a principal will first take a Middle schools are larger than elementary certain number of applicants from each schools. Consequently, the "pipeline" list-for instance, the first ten names on increases by about 450 students at the sixth each list-and notify the parents. If the grade level and by sixty students at the parent declines to enroll the child in that seventh grade level. About 800 students school, the principal can now move to the graduate from the three traditional middle next name on one of the four lists, using his schools. These students can state a or her discretion as to which list to choose preference to attend either Butler or Male [. . from. If all of the parents accept, depending .which] have available space for 946 ninth upon space availability, the selection process graders, 446 at Butler and 500 at Male.... may be complete or may require selection of Butler typically has about 200 openings for a few more students. The Office of students outside the traditional school Demographics gives final approval on a "pipeline." Consequently, students not in the principal's selections to ensure that the "pipeline" may apply for Butler. Their school is within the racial guidelines. applications are considered to the extent space is available. A principal may not deviate from the order in which the names appear on the lists. If a Students who are not accepted to a principal has chosen all the names on a traditional school have other opportunities to given list, he or she is not permitted to join the "pipeline." For instance, a student recruit additional applicants for that may elect to apply to the traditional race/gender category. Similarly, if few or no programs at Foster or Maupin. . . . [The Black students apply to a traditional school, court notes that most of the plaintiffs did not a principal would be limited to admitting reapply when denied admission or did not only those Black students who apply at that apply to the traditional program.] time. JCPS, however, makes a concerted effort through the Parent Assistance Center 2. and the Department of Student Assignment to ensure adequate Black student The racial guidelines also apply to the participation in the traditional program. traditional schools. The process for employing the guidelines, however, is significantly different from the process as it

455 IV. THE STANDARD OF REVIEW interest, however, is categorically compelling. The interest asserted must be [The court establishes that strict scrutiny is examined and approved in each case in light the proper standard of review for racial of the particular context in which it is classifications] asserted.

To give all students the benefits of an education in a racially integrated school and Most recently, in Grutter and Gratz, the to maintain community commitment to the Supreme Court explicitly reaffirmed strict entire school system precisely express the scrutiny for review of racial classifications Board's own vision of Brown's promise. The in higher education admissions programs. benefits the JCPS hopes to achieve go to the heart of its educational mission: (1) a better academic education for all students; (2) better appreciation of our political and V. JCPS HAS ESTABLISHED A cultural heritage for all students; (3) more COMPELLING INTEREST IN competitive and attractive public schools; MAINTAINING INTEGRATED and (4) broader community support for all SCHOOLS JCPS schools. Mem. Op., at 1-2.

Strict scrutiny means that racial Whether an asserted interest is truly classifications must further a compelling compelling is revealed only by assessing the governmental interest and must be narrowly objective validity of the goal, its importance tailored to meet that interest. ... to JCPS and the sincerity of JCPS's interest. For the reasons that follow, the Court has no The Supreme Court has said that universities doubt that Defendants have proven that their and graduate schools may state a compelling interest in having integrated schools is interest in obtaining "the educational compelling by any definition. benefits of a diverse student body." Id. at 328. The Board's interests articulated here A. overlap with those of the Michigan Law School at the individual student level. In Traditionally, Americans consider the addition, in its statement of interests, the education of their children a matter of Board has articulated broader concerns in intense personal and local concern. Not the different context of public elementary surprisingly, over many years and in a and secondary education. The different variety of circumstances, the Supreme Court context "matters" because, under the Equal has strongly endorsed the role and Protection Clause, "not every decision importance of local elected school boards as influenced by race is equally objectionable they craft educational policies for their and strict scrutiny is designed to provide a communities. Freeman v. Pitts, 503 U.S. framework for carefully examining the 467, 489-90, 118 L. Ed. 2d 108, 112 S. Ct. importance and the sincerity of the reasons 1430 (1992); Wash. v. Seattle Sch. Dist. No. advanced by the governmental 1, 458 U.S. 457, 481-82, 73 L. Ed. 2d 896, decisionmaker for the use of race in that 102 S. Ct. 3187 (1982). The historical particular context." Id. at 327. No particular importance of the deference accorded to

456 local school boards goes to the very heart of legislation. See 20 U.S.C. § 6301 et seq. our democratic form of government. It is Likewise, the Supreme Court has reiterated conceptually different-though perhaps that "education . . . is the very foundation of more accepted-than the deference good citizenship." Grutter, 539 U.S. at 331 discussed in Grutter and Bakke. (quoting Brown, 347 U.S. at 493).

Democratically elected school boards across the country are struggling to improve our schools and the education of children in For the majority in Grutter, cross-racial them and to retain the public support of their understanding and racial tolerance, communities. The Court's deference to preparation for a diverse workplace and JCPS's efforts here is neither absolute nor training of the nation's future leaders were determinative. "substantial" benefits of diversity in higher education. Id. at 330-32. Like institutions of higher education, elementary and secondary schools are "pivotal to 'sustaining our B. political and cultural heritage' with a fundamental role in maintaining the fabric of Now removed from the mandate of a federal society." Id. at 331 (quoting Plyler v. Doe, court decree, the Board has made its choice. 457 U.S. 202, 221, 72 L. Ed. 2d 786, 102 S. This Court must consider the importance Ct. 2382 (1982)). For that reason, these and validity of that choice. same benefits accrue to students in racially integrated public schools. Several JCPS Integrated schools, better academic witnesses testified that, in a racially performance, appreciation for our diverse integrated learning environment, students heritage and stronger, more competitive learn tolerance towards others from different public schools are consistent with central races, develop relationships across racial values and themes of American culture. lines and relinquish racial stereotypes. These Access to equal and integrated schools has values transcend their experiences in public been an important national ethic ever since school and carry over to their relationships Brown v. Board of Education established in college and in the workplace. As a result, what Richard Kluger described as "nothing these students are better prepared for jobs in short of a reconsecration of American a diverse workplace and exhibit greater ideals." What Kluger and others have social and intellectual maturity with their articulated is that Brown's symbolic, moral peers in the classroom and at their job. and now historic significance may now far These benefits that the Board seeks from an exceed its strictly legal importance. Alluding integrated school system are precisely those to that very point, this Court has said that articulated and approved of in Grutter. The "Brown and its progeny established a moral Court finds that the benefits of racial imperative to eradicate racial injustice in the tolerance and understanding are equally as public schools." Hampton II, 102 F. Supp. "important and laudable" in public 2d at 379. Congress recently affirmed the elementary and secondary education as in value of racial integration and interaction by higher education. Id. at 330. its enactment of the No Child Left Behind Act and by the statements contained in that Other benefits the Board seeks are quite

457 different from those articulated in Grutter. invest parents and students alike with a Nevertheless, they seem equally compelling. sense of participation and a positive stake in The Board believes that integration has their schools and the school system as a produced educational benefits for students whole. This is vital to JCPS because, in a of all races. Over the past twenty-five years, very real sense, it competes for students with White and Black students in JCPS have many types of private and parochial schools progressed by every measure. In Hampton throughout Jefferson County. In recent II, this Court found that "the Board is years, it has competed very successfully.... convinced that integrated schools provide a better educational setting for all its students; The evidence on each of these points [and] that concentrations of poverty which demonstrates that maintaining an integrated may arise in neighborhood schools are much system may help the Board to achieve its more likely to adversely affect black goals for individual students and the system students than whites." 102 F. Supp. 2d at as a whole. The Court concludes, therefore, 371 n.30. The evidence presented in this and that the Board's policy of integrated schools earlier cases "seems to suggest that African- is both important and valid. American student achievement has improved substantially" during the past twenty-five years. Id. at 365 n.12. Indeed, one of Defendants' experts testified that VI. THE 2001 PLAN IS NARROWLY racial integration benefits Black students TAILORED IN MOST RESPECTS substantially in terms of academic achievement. The Court cannot be certain to Even to achieve a compelling purpose, the what extent the policy of an integrated Board may use race only by means that are school system has contributed to these "specifically and narrowly framed to successes. Opinions surely vary on this accomplish that purpose." Grutter, 539 U.S. issue. The Court certainly need not resolve At 333. . . . To be narrowly tailored, the this ongoing debate. But, the Fourteenth Board's use of race must "'fit' this Amendment does not enact any particular compelling goal so closely that there is little preference of educational policy. As a or no possibility that the motive for the matter of evidence, however, this Court can classification was illegitimate racial find that the Board has valid reasons for prejudice or stereotype." J.A. Croson Co., believing that its student assignment policies 488 U.S. at 493. The Court's narrow may aid student performance. tailoring inquiry must be carefully "calibrated to fit the distinct issues raised by The Board also believes that school the use of race" in this case. Grutter, 539 integration benefits the system as a whole by U.S. at 334. Consequently, the Court will creating a system of roughly equal evaluate whether the 2001 Plan is narrowly components, not one urban system and tailored, or is a proper "fit," in light of the another suburban system, not one rich and factual and analytical differences between another poor, not one Black and another this case and the admissions programs White. It creates a perception, as well as the reviewed in Grutter and Gratz. potential reality, of one community of roughly equal schools. Student choice and The complexity of these legal issues and the integrated schools, the Board believes, absence of judicial unanimity mean that

458 fundamental truths about narrow tailoring quota system because it would almost are difficult to discern. The Grutter and always violate the narrow tailoring Gratz opinions reveal a starkly divided court requirement. Id. at 334-35. As the Supreme that determines equal protection Court also wisely noted, however, "'some jurisprudence by a shifting coalition of attention to numbers,' without more, does views in a given context or case. The Court not transform a flexible admissions system must proceed carefully. For that reason, the into a rigid quota." Id. at 336 (quoting Court will not accord even limited deference Bakke, 438 U.S. at 323). Common sense and to the Board's implementation of its goals. the Supreme Court suggest that any strict or de facto racial quota has a couple of known With these principles in mind, in order to characteristics: it has a precise target, and it determine whether the 2001 Plan is narrowly insulates some applicants from competition tailored, the Court will evaluate the four with other applicants. The Court concludes primary factors that the Supreme Court that, for the most part, the 2001 Plan's use of considered in Grutter: (1) whether the 2001 the racial guidelines lacks these attributes. Plan amounts to a quota that seeks a fixed number of desirable minority students and 1. insulates one group of applicants from another, (2) whether the applicant is By definition, a quota must present a afforded individualized review, (3) whether relatively precise target. While this would the 2001 Plan "unduly harm[s] members of appear clear enough, everyone appears to any racial group," and (4) whether JCPS has have different ways of applying this given "serious, good faith consideration of definition to a given set of facts. workable race-neutral alternatives" to achieve its goals. Together, these factors The 2001 Plan's racial guidelines for all constitute the "fit" that is so important to the schools present a quite flexible and broad narrow tailoring analysis. Id. at 333. The target range. The Board's goal is to achieve a Court's analysis will focus upon elements of racial mix of between 15% and 50% Black the 2001 Plan that govern assignment to students at each school. That the actual non-traditional schools. In a separate percentage of Black students at individual section, the Court will consider whether the schools ranges between 20.1% and 50.4% student assignment process for traditional demonstrates the extent of the Board's schools is narrowly tailored. flexibility in achieving its goals. Even within this broad range, the Court finds a A. wide dispersal among the percentages of Black students in JCPS schools. For The most important narrow tailoring issue, instance, 62 out of 87 elementary schools, and Plaintiffs' primary argument, concerns 17 of 23 middle schools, and 15 of 20 high whether the 2001 Plan operates as a racial schools have a racial mix of over 40% or quota. "Properly understood, a 'quota' is a under 30% Black students. In other words, program in which a certain fixed number or only about 30% of all schools show a racial proportion of opportunities are 'reserved mix within even five percent of either side exclusively for certain minority groups."' Id. of the systemwide average. This represents a at 335. The Supreme Court said that a race- widely dispersed range in Black students conscious admissions program cannot use a among JCPS schools rather than a precise

459 target. 2.

Everyone seems to have an opinion about A quota also insulates "each category of the meaning of statistics. In Grutter, for applicants with certain desired qualifications instance, Justices O'Connor and Kennedy from competition with all other applicants." battled over statistics and what constituted a Id. at 334 (quoting Bakke, 438 U.S. at 315 quota. Justice O'Connor called the Michigan (Powell, J.)). In other words, it "put[s] Law School's percentages of minority members of those groups on separate students, which varied between 13.5% and admissions tracks." Id. Except for traditional 20.1%, "a range inconsistent with a quota." school assignment, all JCPS students are Grutter, 539 U.S. at 336. Justice Kennedy, subject to the same criteria within the 2001 however, concluded that the percentage of Plan. Criteria such as residence, student minority law students fell in a much tighter choice and random lottery are significant range that he called a quota. He viewed race assignment factors for every student. No as almost "an automatic factor" that made JCPS student is insulated from competition the law school's "numerical goals with all other students, and no student is indistinguishable from quotas." Id. at 389 placed on a separate admissions track. (Kennedy, J., dissenting). He said that "the narrow fluctuation band [among rates of It is constitutionally permissible to set racial admission for Black applicants] raises an goals to achieve truly compelling interests. inference that the Law School subverted It is impermissible, however, to seek that individual determination, and strict scrutiny racial goal so assiduously and precisely that requires the Law School to overcome the it amounts to a quota. JCPS's conduct inference." Id. at 390-91. Justice Kennedy resembles the former because it has set "a cited Amherst College, which admitted permissible goal .. .requir[ing] only a good- between about 8.5% (81 out of 950 offers) faith effort . . . to come within a range and 13.2% (125 out of 950 offers) minority demarcated by the goal itself." Id. at 335 . applicants over a ten-year period, as an The broad range in the guidelines shows that example of a range not suggestive of a the Board does not operate a de facto quota quota. Id. In our case, one finds neither an that imposes or arrives at a "fixed number or automatic assignment nor a "narrow band" percentage which must be attained." Id. of percentages of Black students among (quoting Sheet Metal Workers Int'1 Ass'n, JCPS schools. Indeed, the range in the 478 U.S. at 495). Thus, the evidence simply percentage of Black students among all does not support the conclusion that the JCPS schools is much broader than the broad racial guidelines actually mask a range in minority admissions at either tighter range, create a de facto quota or Amherst College or Michigan Law School. insulate one group of applicants from This wide fluctuation suggests a lesser use competition with another group. of race and the absence of a specific target. Finally, even a cursory review of assignment B. data reveals that neither Black students nor White students are guaranteed assignment to In Grutter, Justice O'Connor noted that the a particular school. Too many race-neutral law school's "highly individualized" review factors affect assignment for that to be true. of applications meant that the admissions process did not contain "mechanical" or

460 "predetermined diversity bonuses." Id. at program. It is individualized attention of a 337. For her, the law school's approach was different kind in a different context than the more nuanced than that of the undergraduate Supreme Court found in Grutter. admissions program because the law school conducted a meaningful review of the In significant ways, the 2001 Plan actually individual candidate's application. In fact, in operates like the "plus" system of which the her Gratz concurrence joined by Justice Supreme Court has spoken so approvingly. Breyer, she noted the absence of Id. at 335 (citing Johnson v. Transp. Agency, individualized attention when finding the 480 U.S. 616, 638, 94 L. Ed. 2d 615, 107 S. undergraduate program's use of race in its Ct. 1442 (1987)). Many factors determine admissions policy impermissible. Gratz, 539 student assignment, including address, U.S. at 276-77 (O'Connor, J., concurring). student choice, lottery placement, and, at the The switch that Justices O'Connor and margins, the racial guidelines. But, race is Breyer made between Grutter and Gratz simply one possible factor among many, reveals a potential fault line in the narrow acting only occasionally as a permissible tailoring analysis: the presence or absence of "tipping" factor in most of the JCPS individualized review. Consequently, the assignment process. The Supreme Court has Court must determine whether the 2001 Plan said this narrow use of race is permissible incorporates some sufficient form of given a compelling reason. Specifically, individualized attention in the assignment Justice Powell stated in Bakke that "when process. The Court concludes that it does. the [Harvard] Committee on Admissions reviews the large middle group of applicants "Highly individualized, holistic review" of who are 'admissible' and deemed capable of each applicant ensures that "each applicant doing good work in their courses, the race of is evaluated as an individual and not in a an applicant may tip the balance in his favor. way that makes an applicant's race or ... 438 U.S. 265, 316, 57 L. Ed. 2d 750, 98 ethnicity the defining feature of his or her S. Ct. 2733 (1978) (quoting from amicus application." Grutter, 539 U.S. at 337. . . . brief regarding aspects of Harvard Under those circumstances, race is "one of admissions policy). In Grutter, the Supreme many factors" to consider and may be used Court echoed these sentiments, stating that as a permissible "tipping" factor in deciding situations where race makes a difference in a particular student's placement. Id. at 339 admissions could happen in "any plan that (citing Bakke, 438 U.S. at 316). uses race as one of many factors," including the Michigan Law School plan. 539 U.S. at One must analyze the 2001 Plan in its totally 339. different context. Unlike the law school, JCPS does not deny anyone the benefits of In light of the foregoing analysis, the Court an education. . . . Rather than excluding concludes that the 2001 Plan allows for the applicants, the Board's goal is to create more consideration of several factors, including equal school communities for educating all race. Moreover, except as to traditional students. But, like the law school, the JCPS schools, the appropriate consideration of assignment process focuses a great deal of individual factors within the assignment attention upon the individual characteristics context ensures that race does not become of a student's application, such as place of "the defining feature" of a student's residence and student choice of school or application.

461 C. the use of race in graduate school admissions and the JCPS student assignment Another factor in the narrow tailoring plan results from the vastly different concept analysis is that the Board's use of race does of each system. The law school admissions not "unduly harm members of any racial program excludes many applicants because group." Grutter, 539 U.S. at 341. This is of its goal of creating an elite community. neither a new nor surprising concept. Some The JCPS policy of creating communities of twenty-six years ago, Justice Powell equal and integrated schools for everyone referenced the same distinction between excludes no one from those communities. denial of admission to a selective graduate Consequently, when the Board makes a school and the assignment of a student to an student assignment among its equal and alternative but appropriate public school. integrated schools, it neither denies anyone a Bakke, 438 U.S. at 300 n.39. His observation benefit nor imposes a wrongful burden. seems applicable here. ... [T]he Board uses race in a limited way to achieve benefits for all students through its integrated schools. The workplace, marketplace, and higher education cases are poor models for most D. elementary and secondary public school education precisely because they always involve vertical choices-one person is hired, promoted, receives a valuable "Narrow tailoring does not require contract, or gains admission. Ordinarily, exhaustion of every conceivable race-neutral when JCPS assigns students to a particular alternative." Id. For instance, the Board elementary, middle, or high school, the could accomplish its objective through some assignment has no qualitative or 'vertical' form of an assignment lottery covering the effects. This is s ) because the Court entire school system. Such a system, concludes that as between two regular however, would require a "dramatic elementary schools, assignment to one or sacrifice" in student choice, geographic another imposes no burden and confers no convenience and program specialization. Id. benefit. The same education is offered at at 340. Moreover, it could only be achieved each school, so assig nment to one or another at a huge financial cost. This is not required. is basically fung ible. As a logical consequence, most courts have concluded In every area of school assignment except that there is no indi vidual right to attend a the traditional schools, the Board has specific school in a district or to attend a undertaken considerable effort to achieve its neighborhood school. As among basically goals without the overt use of race in student equal schools, the use of race would not be a assignments. It encourages students of all 'preference.' As among basically equal races to exercise choices. It recruits Black schools, therefore, JCPS's policy is not one and White students for academic programs of 'affirmative action.' that promote educational improvement and enhance school integration. As a 102 F. Supp. 2d at 380 (citations and consequence, the Board's goal of an footnotes omitted). The difference between integrated school system is achieved

462 primarily through alternative measures that portion of the overall student census. The are educationally laudable and restrained in assignment process for those schools has the use of race. The Court concludes that, features that make it distinct from other throughout most of the assignment process, aspects of the 2001 Plan and present the Board sufficiently considered and used particularly difficult constitutional alternatives, which either were race-neutral questions. In the end, the Court finds that the or made minimal use of race, to meet narrow use of race in the traditional school tailoring requirements. assignment process is not narrowly tailored.

E. In some respects, the traditional schools are no different than others throughout JCPS. In summary, except for the traditional Traditional schools have the same school assignment process, which will be curriculum, financial resources and student discussed separately, the 2001 Plan is a discipline regulations as nearly every other proper "fit" because it is sufficiently flexible school. They offer a distinct atmosphere for to determine school assignments for all the same educational curriculum available at students by a host of factors, such as most other schools. The broad racial residence, student choice, capacity, school guidelines cover traditional schools in the and program popularity, pure chance and same manner as every other school. Were race.... the traditional school assignment process to function under the same broad racial The 2001 Plan also "fits" its intended guidelines and operational principles as objectives because it does not unduly harm previously discussed, it would be entirely other students. The Plan works so that most permissible. students attend a school of their choice. Because all schools have similar funding, The traditional school assignment process, offer similar academic programs and however, differs in two respects that have comprise more similar ranges of students constitutional significance: (1) the than possible in neighborhood schools, an assignment process puts Black and White assignment to one school over another does applicants on separate assignment tracks, not cause constitutional harm to any student. and (2) its use of the separate lists appears to be completely unnecessary to accomplish Except as to traditional schools, the Court the Board's goal. cannot see that JCPS has any other workable race-neutral alternatives for accomplishing The significance of separating traditional its compelling objective. school applicants into explicit racial categories is that students are placed on VII. THE TRADITIONAL SCHOOL separate assignment tracks where race ASSIGNMENT PROCESS IS NOT becomes "the defining feature of his or her NARROWLY TAILORED application." Grutter, 539 U.S. at 334, 337. . . . The assignment process insulates one The sole exception to the Court's narrow group of applicants from the randomness of tailoring inquiry concerns the traditional choice and "competition" with other school assignment process. Traditional applicants. The use of categories, therefore, school enrollment amounts to a small makes race the "defining feature" rather than

463 merely the "tipping" factor. In this Court's applying in the future. Even if this view, the Supreme Court would likely find speculation should prove true, the Board has these racial categories highly suspect. much less intrusive and more precisely targeted means at its disposal to maintain An even more troublesome aspect of these present levels of Black student participation racial classifications is that they appear in the traditional program or to rectify entirely unnecessary to achieve the Board's decreased future participation at certain stated goal of racial integration. The Court schools. JCPS can enhance its recruitment has compared data regarding the racial efforts for White and Black students at make-up of the applicant pools in the last various traditional schools. It can redraw two academic years with the racial make-up traditional school boundaries (at least at the of the student populations in individual elementary and middle school levels) to traditional schools at the same time. Overall, increase the chances of attracting more the percentage of Black applicants each year Black students from neighborhoods in which to a particular traditional school rather Blacks reside and increase outreach to Black closely approximated the percentage of families. As the 2001 Plan provides, the Black students in that school's population. Board could then use race as a "tipping" Under the general law of probabilities, if factor if necessary to achieve its compelling applicants were selected off of one random goals. draw list, the ratio of Black to White students in the applicant pool at a particular The Court must conclude that the initial school would be reflected in the ratio of separation of traditional school applicants Black to White students in the pool of into racial categories makes race a defining admitted students and, consequently, in the feature of the student's application and is school's student population at large. More entirely unnecessary to accomplish the importantly, given the current numbers of Board's stated objective of racial integration. Black students applying to traditional This use of race in the 2001 Plan therefore is schools, the laws of probability predict that not narrowly tailored. By revising the 2001 each school would fall within the racial Plan in a manner consistent with this guidelines. This is true even at Greathouse Memorandum Opinion, the Board may Elementary and Johnson Middle where maintain its current assignment process. numbers of Black applicants hover at either Although the Court has found that the use of end of the guidelines. This evidence racial categories under the 2001 Plan suggests that the use of racial categories is violates Plaintiffs' rights under the Equal completely unnecessary. Protection Clause, their children are not entitled to admission to the school of their JCPS says that separate racial lists are choice. . . . While the Court will enjoin the necessary to maintain solid levels of Black use of the racial categories in the traditional student participation in traditional schools. school assignment process, equity does not JCPS fears that, without the lists, Black require that Plaintiffs' children be admitted students would be admitted in fewer to the school of their choice in the upcoming numbers, racial isolation would result, and school year. Black students would be discouraged from

464 "Justices to Hear Cases of Race-Conscious School Placements"

Washington Post June 6, 2006 Charles Lane

The Supreme Court announced yesterday race-conscious plan. that it will rule on the race-conscious "It's bad news for desegregation advocates," assignment of students to public schools, in said Goodwin Liu, a Clinton administration a pair of cases that could produce some of education official who teaches constitutional the most important decisions on school law at the University of California at integration since the busing battles of the Berkeley. "It looks like the more 1960s and '70s. conservative justices see they have a fifth The court agreed to hear arguments in vote to reverse these cases." separate lawsuits by white parents in Seattle But lawyers for the Seattle and Louisville and Jefferson County, Ky., which parents argued there was a circuit split encompasses Louisville, who say each because the post-2003 lower-court rulings public school system unconstitutionally clashed with three pre-2003 rulings against discriminates based on skin color. The race-conscious policies. jurisdictions' programs differ, but each seeks to maintain racial balance with the help of Sharon Browne, principal attorney of the numerical targets for minority enrollment. Pacific Legal Foundation, which supports the parents' lawsuits, said she "was pleased Although the court has addressed race- that the Court has decided to hear these conscious admissions for diversity in higher cases. Together, these cases could put an end education, upholding them on a 5 to 4 vote to schools using race as a factor to decide in 2003, this would be the first time it has where children can attend public school." addressed the "diversity rationale" as it affects the country's 48 million public Yesterday's decision returns the court to an elementary and secondary school students. It area of American life that it revolutionized will also be the first race-related in 1954 with Brown v. Board Education- constitutional case for President Bush's two and the lower-court desegregation orders, appointees, Chief Justice John G. Roberts Jr. including busing in many cities, that flowed and Justice Samuel A. Alito Jr. from that decision. The court's decision to take the cases was In the intervening years, however, direct something of a surprise, since all three court supervision of public school racial federal appeals courts to rule since 2003 composition has generally lapsed, and sided with the school systems. The court schools face student demographics usually intervenes to settle lower-court determined not only by the country's historic conflicts. black-white divide, but also by immigration from around the world. Six months ago, before Alito replaced Sandra Day O'Connor, who wrote the 2003 Embracing diversity not as a legal opinion, the court declined to hear the requirement but as an educational objective, challenge of a parent in Lynn, Mass., to a school districts frequently offer alternatives 465 to geographical assignment, including minimum black enrollment of 15 percent school choice and magnet school options. and a maximum of 50 percent. But these, in turn, can result in competition The only exceptions are for pre- for spots at the most-sought-after schools. kindergarten, kindergarten, alternative and "The decision and the opinions will be special schools-and four magnet schools impactful," said Francisco Negron, general covered by a federal judge's ruling barring counsel of the National School Boards the use of race to allocate educational Association, which has supported the school opportunities not widely available. districts in the lower courts. "We're in the Parent Crystal D. Meredith, however, argues post-integration era. Many desegregation that the plan cost her son admission to the lawsuits filed in the '70s have come to a school in his neighborhood. In Seattle, natural ending point. . . . Schools are trying which has substantial Asian and Hispanic to implement policies that recognize the populations as well as large numbers of need for diversity." whites and African Americans, no court has Seattle and Louisville say their plans are ever found the 47,000-student school system consistent with the Supreme Court's 2003 guilty of official segregation. Instead, the ruling-which allowed universities to school board says that diversity is a key consider race as one of many factors when educational value and that segregated assembling diverse colleges and graduate housing patterns must be changed. schools. The city began busing in 1977 but stopped They say their use of race is necessary to in 1988. Under an "Open Choice" plan meet compelling educational goals, and adopted in 1998, the goal was to have accounts for a modest number of school schools close to the city's overall racial assignments. composition: 60 percent minority, 40 But the plaintiffs argue that school officials percent white. Children can attend any have gone beyond what the court permitted school. At schools where demand for spaces in 2003, because they ultimately rely on exceeds supply, however, siblings of current fixed numerical targets for assigning students have priority-and an "integration students. tiebreaker" favors students whose race would tip a school toward 60-40. Each system adopted its plan voluntarily, but against the backdrop of different social and The tiebreaker has not been in use since 2002 legal histories. because of the litigation, which was brought by Parents Involved in Community In Louisville, the 97,000-student public Schools, a group of white parents who say it school population is 34 percent black, with cost their children admission to the popular the rest predominantly white. In 1973, a Ballard High School. federal court ruled that it was officially, and The tiebreaker was initially invalidated by a unlawfully, segregated. This led to court- three-judge panel of the San Francisco-based ordered busing from 1975 to 1984. The U.S. Court of Appeals for system remained under court supervision the 9th Circuit. But an 11-judge panel granted a new hearing until 2000. and upheld it 7 to 4. The current Louisville plan says that all are Parents Involved in schools, including magnets, must have a The cases Community Schools v. Seattle School 466 District No. 1 , No. 05-908, and Meredith v. 05-915. Argument will take place in Jefferson County Board of Education , No. December, with decisions due by July 2007.

467 "Court to Weigh Race as Factor in School Rolls"

New York Times June 5, 2005 Linda Greenhouse

The Supreme Court agreed on Monday to rule on what measures, if any, public school The new cases do not ask the court to revisit systems may use to maintain racial balance that decision, and the justices are unlikely to in individual schools. do so. But the implications are far-reaching nonetheless. The eventual decision, roughly The eventual decision on whether they can a year from now, could not only set the take race into account could affect hundreds court's path in this area but could also shape of school systems in all areas of the country. the climate in which government policies The court accepted challenges to plans in with respect to race will be debated. Louisville, Ky., where the schools were once racially segregated by law, and in Seattle, One difference between the Michigan where segregation was never official but decision and the new cases is that while the was widespread because of residential University of Michigan sought to use patterns. affirmative action to achieve a measure of racial balance, the school districts are trying Federal appeals courts upheld these plans, to maintain such a balance. both of which offer students a choice of schools while taking race into account in In December, with Justice O'Connor still on deciding which transfer applications to the court, the justices refused to hear a accept. Variations of this approach are challenge to a racially conscious student common, and have been under legal attack assignment plan in the public schools of around the country. Lynn, Mass. That plan, which a federal appeals court had upheld, is basically The Supreme Court's decision to add the indistinguishable from the plans at issue in cases to the calendar for its next term, a step the new cases: Parents Involved in that by all appearances was controversial Community Schools v. Seattle School within the court and unexpected outside it, District, No. 05-908, and Meredith v. plunged the new Roberts court into one of Jefferson County Board of Education, No. the country's deepest constitutional debates. 05-915.

The action came three years after the court What has changed is the Supreme Court upheld a racially conscious admissions plan itself, with the retirement in January of at the University of Michigan Law School. Justice O'Connor and her replacement by Writing for the majority in that 5-to-4 Justice Samuel A. Alito Jr. One lawyer decision, Grutter v. Bollinger, Justice involved in the challenges to the Seattle and Sandra Day O'Connor suggested that, at Louisville plans, Sharon L. Browne of the least in higher education, affirmative action Pacific Legal Foundation, a conservative might be necessary for another 25 years. public-interest law firm, expressed the view 468 that this change made the difference. "Ithink percent nonwhite, must take account of an the writing's on the wall, or at least I hope it applicant's race in order not to deviate is," Ms. Browne said in an interview further. Monday. A group of parents organized as a nonprofit The plans under review in the new cases corporation called Parents Involved in differ in details that are unlikely to prove Community Schools to fight the plan, and constitutionally significant. The Jefferson filed the Supreme Court appeal after losing County, Ky., school board adopted the by a vote of 7 to 4 in the United States Court Louisville plan in 2001, shortly after the of Appeals for the Ninth Circuit. school system was declared desegregated and was released from 25 years of federal Both appeals reached the court in January court supervision. and evidently provoked a vigorous internal debate among the justices, who considered The "managed choice" plan applies to all the Seattle case six times and the Louisville schools, kindergarten through 12th grade. In case seven times before issuing the one-line a district that is one-third nonwhite, every order accepting both. Prolonged review of school is required to seek a black student this sort is unusual. enrollment of at least 15 percent and no more than 50 percent. Briefs are now likely to pour into the court in advance of a November argument; the The Louisville case was taken to the University of Michigan case drew more than Supreme Court by Crystal D. Meredith, a 100 briefs. But one of the more influential white parent whose son, Joshua McDonald, analyses may prove to be a brief concurring did not receive a requested transfer to attend opinion in the Seattle case by Judge Alex kindergarten in a school that was trying to Kozinski, the Ninth Circuit judge whose maintain a sufficient number of black views carry great weight among legal students. conservatives. The plan in Seattle, which has struggled for decades to deal with the effects on its school Describing the Seattle plan as one "that gives the American melting pot a healthy stir system of segregated housing patterns, applies only to the city's 10 high schools. without benefiting or burdening any The policy is one of "open choice," subject particular group," Judge Kozinski addressed to various "tiebreakers," one of which is the Supreme Court justices directly, on the race. Other factors include geographic assumption that they would soon be proximity and whether a student has a reviewing the decision. sibling at the desired school, both of which count in favor of an application. "There is much to be said for returning primacy on matters of educational policy to Under the "integration tiebreaker," high local officials," he said. schools that deviate by more than 15 percent from the systemwide balance, which is 60

469 "Supreme Court Will Hear Affirmative-Action Cases With Potentially Broad Meaning for Higher Education The Chronicle of Higher Education"

Chronicle ofHigher Education June 16, 2006 Jeffrey Selingo

Deciding once again to weigh in on the undergraduate college because it awarded explosive debate over affirmative action, the each black, Hispanic, and American Indian U.S. Supreme Court agreed last week to take applicant a 20-point bonus on a 150-point up the question of whether race can be a scale. factor in assigning students to public schools. * Scenario 2. The rulings would suggest that the court was open to revisiting the The court accepted two cases that are the Michigan decisions through another case first involving racial preferences at involving race-conscious admissions at educational institutions since it handed down colleges. two landmark rulings on race-conscious college admissions in 2003, and since the * Scenario 3. The decisions would be appointment of two new justices by narrowly tailored and would apply only to President Bush. public school districts.

How the two appeals from a Seattle parents' The wild cards in these cases, lawyers and group and from a parent in Louisville, Ky. legal scholars agreed, are the two new may ultimately affect the Supreme Court's members of the court: Chief Justice John G. decisions in the 2003 cases, which involved Roberts Jr. and Justice Samuel A. Alito Jr., the University of Michigan at Ann Arbor, is both of whom have right-of-center unclear and is already the subject of much reputations. The two appeals accepted last debate among lawyers and legal scholars. week are similar to a case the court refused Last week a few higher-education lawyers to hear in December, when Justice Sandra laid out several scenarios that could result Day O'Connor was still on the bench. Justice for colleges from rulings in the two school- O'Connor wrote the majority opinion in the district cases: Michigan case that upheld the use of race in admissions. * Scenario 1. The decisions would contain language that provided colleges with Colleges May Get Involved guidance on how to apply the Michigan rulings. The court did not endorse a single Roger B. Clegg, general counsel for the admissions method in its mixed decisions in Center for Equal Opportunity, an advocacy 2003. In one case, the court upheld the race- group that opposes racial preferences, said conscious admissions policies used by last week that he found it interesting that the Michigan's law school because the school two cases accepted by the court and the one considered each applicant individually. In it rejected in December all upheld the use of the other case, the justices struck down the race in assigning students. admissions policy at Michigan's main

470 "There is no conflict in the circuits," he said, referring to the court's common practice of The Seattle case accepted by the Supreme resolving judgments at variance among the Court Parents Involved in Community different federal Courts of Appeal. "And the Schools v. Seattle School District, No. 05- conventional wisdom," he said, "is that the 908 dates to 2000. That's when a group Supreme Court doesn't take cases in order to called Parents Involved in Community affirm." Schools sued the school district, arguing that its method of using race as a tiebreaker Still, Mr. Clegg said, the Supreme Court is when it had more applicants than openings not likely to use this occasion to overturn the in high schools was unconstitutional. Michigan cases. "That's not going to happen," he said. "But I think the court may The plan, which allowed students to pick give some indication that the majority will among high schools, was upheld by the be willing reconsider the cases." Washington State Supreme Court. It was struck down by a three-judge panel of the As a result, higher-education lawyers said, it U.S. Court of Appeals for the Ninth Circuit, is probable that colleges will get involved in but was later upheld by a 7-to-4 vote of the the run-up to oral arguments in the school- entire appeals court. district cases by writing, for example, briefs in support of the schools. The Kentucky case Meredith v. Jefferson County Board of Education, No. 05-915 "I would frankly be surprised if the higher- stems from a federal-court order to end education community doesn't step up," said segregation in Louisville's schools. When Arthur L. Coleman, who is a partner with that federal decree ended, in 2001, the the law firm of Holland & Knight here and county school district started to use race as who helped write such a brief on behalf of one of many factors in assigning schools. A several public schools in the Michigan mother, Crystal Meredith, sued, asserting higher-education cases. Mr. Coleman was that her son had been denied entrance into a one of several lawyers who said the two neighborhood school because he was white. cases taken by the Supreme Court on The plan was upheld by the U.S. Court of Monday could provide colleges with much- Appeals for the Sixth Circuit. needed legal guidance on how to tailor their admissions systems narrowly enough to The Supreme Court is expected to hear the remain within the law. cases in the term that begins in October.

471 "Analysis: An Unanswered, Delicate Race Question"

SCOTUSblog Monday, June 05, 2006 Lyle Denniston

Last October, judges on the Ninth Circuit educational and social benefits of "exposing Court observed that "the Supreme Court has youngsters to those of different races," in never decided a case involving the Judge Boudin's phrase. That is a precise consideration of race in a voluntarily echo of some of the Supreme Court's imposed school assignment plan intended to sentiments in ending official school promote racially and ethnically diverse segregation in 1954 in Brown v. Board of [public] schools." A year ago, judges on the Education, and thus gives such plans their First Circuit Court said much the same most positive cultural character. thing: the Supreme Court "has not yet considered a constitutional challenge to a But, to opponents of such plans, they are voluntary race-based transfer policy for nothing but "racial balancing" that sends elementary and secondary schools..." The "the wrong message to our children-that Court had a chance to consider that issue last racial discrimination is more important than December, but passed up the chance. Now, individual rights and liberties in today's with a change in composition, the Court has society," as the Pacific Legal Foundation's opted to take it on. There may be a Sharon L. Browne has put the matter. connection. The Supreme Court may not embrace either In more than a half-century of dealing with one of those descriptions when it rules on racial issues in the public schools, the Court the two cases that it accepted on Monday for has not ruled on a case in which race is not review at its next Term: Parents Involved v. used as a way to separate the races in the K- Seattle School District (05-908) and 12 grades, in which race is not used to Meredith v. Jefferson County Board of provide a benefit to one race but not to Education (05-915). But it has given itself others, and in which racial assignments or the task of drawing some historic busing are not used to dismantle official constitutional conclusions, and its change in segregation of schools, classrooms or membership may make the difference in faculties. In other words, the new generation how those are framed. At this stage, it may of cases on schools and race are not the be a matter of total uncertainty how the traditional kind under the original 19th Court will come out, making the new cases Century purpose of the Fourteenth potentially the most closely-watched of the Amendment's equal protection clause. "We new Term. are here working from doctrines concerning the use of race-based criteria that are mainly The Court, it seems clear, has not been eager the product of 20th Century jurisprudence," to get involved in this new racial remarked First Circuit Judge Michael controversy. Before it granted review of the Boudin. two cases from Seattle and Louisville, Ky., it had considered them at six consecutive Put in the most benign way, the new race- Conferences. That was not an indication that based plans are designed to achieve the Court thought the cases lacked

472 importance. It more likely was a sign of three of the dissenters- Justices Anthony M. hesitancy about whether there really is a Kennedy, Antonin Scalia and Clarence conflict in the lower courts in judging such Thomas. Chief Justice William H. plans, so it wanted to be satisfied that the Rehnquist, the fourth dissenter, is now time had definitely come for it to move into deceased. There is no way to predict how the fray. There also could have been some Chief Justice John G. Roberts, Jr., will defensive concerns, supporting a resistance approach the new public school cases, nor is to review when the voting lineup would not there about Justice Alito. But the two of be predictable. them do appear, at least at this early stage, to hold the balance of voting power. When the Court had before it one of these plans, from Lynn, Mass. (in Comfort v. Lynn Part of the cloud of doubt surrounding the School Committee [05-348]), Justice Sandra new cases is that there is little in O'Connor's Day O'Connor was still on the bench. At that Grutter opinion that suggests definitively point last December, however, it was still how she or her voting colleagues would uncertain when O'Connor's retirement would have viewed the same constitutional occur, and when her replacement, Justice question in the K-12 context. The lower Samuel A. Alito, Jr., would arrive. Although courts that have applied it to elementary and this cannot be known by outsiders, the secondary schools find in that ruling a set of chances are that the Court at that time was principles flowing out of the notion that avoiding major controversies in which the racial diversity is a positive value, at Justices almost certainly would wind up whatever level of public education it might deeply divided. It took but one look at the be pursued. The difficulty for them-and Lynn case, and passed, even though the this is likely to be true, too, for the Supreme differences between that case and the ones Court-is in determining whether the details now granted are by no means glaring, and of a particular plan make the means of the constitutional issues are virtually achieving that goal valid. identical.

Justice O'Connor, of course, wrote the But, perhaps before getting to those crucial majoity opinion in 2003 when the Court- details, the Court may have to confront dividing 5-4-decided the constitutional directly the core claim of opponents of those issue that is newly at stake in the public plans: that race cannot be used at all in school cases, but it did so in Grutter v. public school student assignment, unless it is Bollinger, a case confined to the public "remedial"-that is, correcting for college level, dealing with admissions identifiable, continuing discrimination criteria. The Court then allowed limited use against identifiable students. And that could of race in college admissions decisions. force the Court to answer a simple but O'Connor's opinion was joined by the profound question: is the achievement of Court's four moderate to liberal members- racial diversity itself in any way "remedial", Justices Stephen G. Breyer, Ruth Bader and, if it is, what evils does it remedy? Ginsburg, David H. Souter and John Paul Stevens. It is not clear, yet, how many school districts across the country may have plans akin to Those other four remain on the Court, as do those now before the Court. By one

473 estimate, some 1,000 districts are using or will get more precise by the time the Court experimenting with "racial diversity" in their takes up the cases in early winter. A flood of student assignments. No doubt, the numbers amici filings are sure to come.

474 "The Alito Difference"

The Washington Times June 13, 2006 Bruce Fein

Supreme Court Justice Samuel Alito is constitutionality highly dubious). unlike his vacillating predecessor Justice Sandra Day O'Connor. Everything in her With Justice Alito having replaced Justice constitutional universe was opaque. Justice O'Connor, the court granted review of Alito's philosophy is made of sterner stuff. Seattle School District and Meredith either to overrule or to sharply confine Grutter. The difference will first find dramatic Justice O'Connor was largely an echo expression in matters of racial chamber for the media and academic elite. discrimination under the Equal Protection Accordingly, she advanced unconvincing Clause of the 14th Amendment. Last week, reasons sustaining racial preferences to avert the high court agreed to review twin their tart criticism. If racial diversity yielded conflicting decisions addressing use of race the fabulous nontrivial educational, in public elementary and secondary school economic and sociological benefits Justice admissions to achieve racially balanced O'Connor celebrated, parents and students student bodies: Parents Involved In would be demanding the Michigan Law Community Schools v. Seattle School School admissions policy blessed in Grutter District, No. 1; and, Meredith v. Jefferson be aped everywhere. Employers would County Public Schools. similarly place a premium on their graduates, and ask applicants to disclose the Justice O'Connor, writing for a thin 5-4 racial compositions of the schools they majority in Grutter v. Bollinger (2003), attended. Students from racially balanced upheld racial preferences in selecting schools would be overrepresented among applicants for admission to public recipients of educational, business, universities. She rhapsodized over community or international honors. They educational, economic and sociological would be more vocal than others in wonders allegedly derived from racially preaching against racial discrimination. And diverse campuses. Whites better understand they would be clearly superior to their blacks and vice versa. Racial stereotypes are counterparts who graduated before initiation dispelled. Classroom discussion is enriched of racial preferences. and enlightened. Student achievement climbs. Students are better prepared to Yet none of these expectancies has been prosper in an increasingly diverse work substantiated by ocular evidence. The force and society. And, success in a global University of Chicago Law School, for marketplace requires exposure to widely example, eschews racial preferences without diverse people, cultures, ideas and any apparent handicap to its graduates in any viewpoints. (But after 25 years, Justice respect, including racial attitudes. O'Connor opined, progress in race relations will have superceded the contemporary Justice Alito, in contrast to Justice justifications for diversity and make their O'Connor, has been immersed in the

475 philosophy that racial distinctions are last four school terms with no evidence that inherently odious. As Justice Antonin Scalia educational achievement or race relations elaborated in Adarand Constructors v. Pena have suffered. (1995), in the eyes of the government there is only one race. It is American. Thus, the The nation's history of racial discrimination Supreme Court held in Anderson v. Martin is admittedly ugly. Slavery was enshrined in (1964) that identifying the race of a the Constitution. Jim Crow succeeded candidate on ballots violated the Equal Reconstruction. The "separate but equal" Protection Clause by encouraging racial bloc doctrine of Plessy v. Ferguson defiled the voting and the subordination of merit to skin 14th Amendment. Blacks risked and gave color. Justice Alito will be inclined to that last full measure of devotion in World overrule Grutter because it sanctions a two- Wars I and II in defense of freedom while track government admissions policy fighting in segregated ranks and subjected to pivoting on race, simpliciter. racial discrimination at home. The South's "massive resistance" to Brown v. Board of The Seattle School District litigation Education segued into Bull Connor's dogs underscores Grutter's vulnerability. In 2001- and Jim Clark's cattle prods to foil black 2002, the School District employed race in voter registration. high school student assignments to avoid racial concentration on any campus. Reminiscent of Justice O'Connor, the district This history and much more teaches that explained: "Diversity in the classroom racial distinctions championed by increases the likelihood that students will government are convulsive. They war with discuss racial or ethnic issues and be more the objective of a colorblind society by likely to socialize with people of different sending a message that individuals should be races. Diversity is thus a valuable resource sorted by race. for teaching students to become citizens in a multiracial/multi-ethnic world." The district The way to get beyond racism is by added that diversity enhances education and prohibition- including the overruling of racial and cultural understanding. But it Grutter-not by winking at its practice for abandoned race in school assignments 25 years in the fatuous belief that racial during the Seattle School District litigation. preferences then will be voluntarily A colorblind standard has prevailed for the surrendered.

476 "Perhaps Not All Affirmative Action Is Created Equal"

New York Times June 11, 2006 Jeffrey Rosen

Now that the Supreme Court has agreed to hear two cases challenging racial balancing If a school is oversubscribed, students are in public schools, some conservatives hope chosen based on a number of "tie-breakers," the end of affirmative action is near. including racial targets designed to ensure that each school's racial makeup doesn't After all, they say, why would the Supreme differ by more than 15 percent from the Court suddenly agree to hear cases about racial composition of the Seattle public racial balancing in Seattle and Louisville schools as a whole. when the court-with Sandra Day O'Connor still serving-refused last December to hear Last October, no one was surprised when the a similar case from Massachusetts? It must famously liberal United States Court of be, the thinking goes, that the court, with Appeals for the Ninth Circuit upheld the two new and more conservative justices, Seattle plan. It cited a 2003 Supreme Court John G. Roberts Jr. and Samuel A. Alito Jr., opinion, by Justice O'Connor, which held wants to overturn affirmative action. that classroom diversity was a compelling governmental interest for law schools and That optimism may be premature, and not universities. because there is a hidden liberal streak on the court. Instead, there is a vigorous debate But it was eye-opening that Judge Alex among prominent Republican judges and Kozinski, a conservative libertarian on the legal scholars about whether racial balancing Ninth Circuit, wrote an unexpected in public schools is an acceptable form of concurring opinion. "That a student is affirmative action. Some conservatives denied the school of his choice may be believe that racial balancing plans, while not disappointing, but it carries no racial stigma colorblind, are still constitutional. and says nothing at all about that individual's aptitude or ability," he wrote. The unexpected fissures among conservatives about how colorblind the And Judge Kozinski quoted the opinion of Constitution should be suggest that certain Chief Judge Michael Boudin of the United forms of affirmative action might be more States Court of Appeals for the First Circuit, acceptable to conservatives than liberals had another Republican judge, who upheld the feared. use of racial balancing in a Massachusetts school choice plan. Unlike "modem The Seattle and Louisville cases, which the affirmative action," Judge Boudin had Supreme Court will hear next fall, involve written, these plans do not "seek to give one challenges to plans known as "managed racial group an edge over another." choice" or "open choice." In Seattle, parents can apply to send their children to any Some conservative scholars suggest that public high school in the district. there may be significant differences between

477 racial balancing for public elementary and case because of the importance of deferring high schools and racial preferences for to the expertise of local prison officials. competitive public universities. Opponents of affirmative action don't buy "When you're talking about public schools, conservative arguments that racial balancing everybody's got to go somewhere, and it's is acceptable. Parents don't view all public not as if some schools are necessarily better schools as equal, they argue, so racial tie- than others," said Charles Fried, a breakers force some parents to send their conservative law professor at Harvard. "At children to worse schools farther from home some point, the government has to have because of their race. some basis for breaking the tie." "In some ways, the damage may be greater Professor Fried said he had not made up his than in the university context, since this may mind on the issue. "I think Roberts and Alito limit the ability of black families to escape are both men who are open to arguments, inferior schools by transferring to schools and I would trust them to think long and where the authorities deem there to be too hard about this," he said. many blacks," says Peter H. Schuck of Yale Law School, author of "Diversity in Conservatives have also long emphasized America," a prominent critique of the importance of deferring to local school affirmative action. officials, a reaction in part to judicially imposed busing programs. In the Seattle case, the conservative dissenting judges wrote that the educational In the Seattle and Louisville cases, the plans benefits of diversity for university students were designed by local politicians. were less obvious for lower-school students. The dissenters quoted David J. Armor, a "This is not the result of some liberal master George Mason professor who has reported plan; it was adopted from the ground up," finding little connection between racial said Samuel Issacharoff, a liberal legal integration and student achievement. scholar at Columbia Law School. Judicial deference is as deeply held a conservative principle as the importance of a colorblind "Where we have had very substantial long- society, and conservative judges and term desegregation, we did not find the activists are conducting a vigorous internal achievement gap changing significantly," debate about how these principles should be Mr. Armor said in an interview. "Idid find a reconciled. modest association for math but not reading in terms of racial composition and Last year, for example, the Supreme Court, achievement, but there's a big state in another opinion by Justice O'Connor, variation." struck down California's policy of racially segregating new prisoners to prevent gang Professor Armor estimated that "at least violence. Justice Clarence Thomas and dozens or maybe hundreds of school Justice Antonin Scalia, ordinarily fierce districts still use race in some way" and said champions of colorblind policies, argued he hoped that the Supreme Court would put that an exception should be made in this an end to all race-conscious assignment

478 plans. "We have racially imbalanced neighborhoods and cities based on where Chief Justice Roberts, in his first term, has people choose to live. What's wrong with shown a skill in persuading his colleagues to racially imbalanced schools?" join unanimous opinions decided on narrow grounds. The race cases may test his IF the court agrees with him, it might require leadership abilities more than any he has districts to consider "race-neutral confronted so far. And the fact that alternatives," like a lottery, to decide which conservatives disagree so vigorously about students gain admission to popular schools. how to apply the principle of colorblindness But given segregated housing patterns, that in different contexts makes the outcome might mean the end of integration. especially hard to predict.

479 "Ninth Circuit, in En Banc Ruling, Allows Use of Race As 'Tiebreaker'in High School Pupil Assignments"

MetropolitanNews October 21, 2005

The Ninth U.S. Circuit Court of Appeals and their parents may choose, or whether ruled en banc yesterday that a plan used by their government may choose for them." the Seattle public schools to assign students to high schools, taking into consideration the Judges Andrew J. Kleinfeld, Richard C. race of students competing for limited spots Tallman, and Consuelo M. Callahan joined at popular schools, did not violate the Bea in dissent. Fourteenth Amendment. .A three-judge Ninth Circuit panel ruled in In a 7-4 decision citing the 2003 Supreme 2002 that the use of race as a factor in Court rulings on affirmative action in school assignments violates 1-200, a 1998 college admissions, the judges said that the initiative similar to California's Proposition Seattle plan was "narrowly tailored to meet 209. But it later vacated that ruling and the District's compelling interests" in asked the Washington Supreme Court to rule promoting diversity and avoiding the on whether the plan violated 1-200. isolation of racial minorities. When the Washington high court said the Judge Raymond C. Fisher wrote the plan did not violate the state law, the case majority opinion, with the concurrence of came back to the Ninth Circuit for resolution Chief Judge Mary M. Schroeder and Judges of the case under the Equal Protection Harry Pregerson, Michael Daly Hawkins, Clause. A panel ruled 2-1 in February that it William A. Fletcher, and Johnnie B. did, but a majority of the judges voted to Rawlinson. Judge Alex Kozinski concurred review that decision en banc. separately. The "open choice" plan, which was first Fisher said it may be even more important adopted in the 1970s, allows students to give for high schools to use race as an admissions a first, second, or third preference as to factor than it is for colleges, because not all which of the city's 10 public high schools students go on to college. they wish to attend. But because the overwhelming majority 82 percent for the "For these students, their public high school 2000-2001 school year prefer to attend one educational experience will be their sole of five particular schools, certain students opportunity to reap the benefits of a diverse are given preference in determining whose learning environment," the judge wrote. wishes will be honored first.

Judge Carlos T. Bea dissented. While there The highest preference is given to those who is unquestioned value in diversity, he wrote, wish to attend a school in which their "[t]he issue here is whether this idea may be siblings are already enrolled. After that, imposed by government coercion, rather however, preference was given to those than societal conviction; whether students wishing to attend a school in which

480 members of their racial group were to commute 30 minutes to another high significantly underrepresented in school. The Pacific Legal Foundation, a comparison to their percentage of the district Sacramento-based advocacy group that has as a whole. brought a number of Proposition 209 enforcement proceedings, filed an amicus The district modified the plan several years brief in support of PICS. PLF previously ago by eliminating the racial "tiebreaker" represented an Orange County citizen who pending the outcome of the litigation. A won a Fourth District Court of Appeal ruling spokeswoman said it would be up to the that a similar plan in the Huntington Beach school board to decide whether the district Union High School District violated the will reinstate the tiebreaker immediately or California initiative. wait to see if the Supreme Court agrees to hear the case. But the Ninth Circuit majority yesterday agreed with the district that maintaining When the tiebreaker was in effect, some racially diverse student bodies "increases the whites were prevented from attending three likelihood that students will discuss racial or high schools in which white enrollment was ethnic issues and be more likely to socialize limited to 55 percent, while non-white with people of different races," trains pupils enrollment was limited at one school. "to become citizens in a multi-racial/multi- Because the third tiebreaker was distance, ethnic world, "brings different viewpoints some students had to attend schools located and experiences to classroom discussions far from home. and thereby enhances the educational process," and "fosters racial and cultural The group that challenged the plan, Parents understanding, which is particularly Involved in Community Schools, said it important in a racially and culturally diverse would continue its efforts. society such as ours." "We are going to petition the U.S. Supreme court to look at this," PICS president The ruling is the second federal appeallate Kathleen Brose, who is white, told The opinion this year to uphold voluntary Associated Press. "It's too important a desegregation plans by city school districts, decision for the city of Seattle. These cases that are helping define how far children need access to their neighborhood districts can go to ensure diversity in their schools, and they're not going to get it if the classrooms. In June, a 3-2 ruling by the First district uses a racial tiebreaker." Circuit upheld a plan used by the school district of Lynn, Mass. Brose said the tiebreaker kept her oldest daughter out of the high school closest to The case is Parents Involved in Community their home, and her other top choices as Schools v. Seattle School District,No. 1, 01- well. As a freshman, she wound up having 35450.

481 "Rulings may back Seattle schools' racial tiebreaker"

The Seattle Times July 7, 2003 Keith Ervin

High Court decisions might lend support for allows parents to choose their children's the policy, but lawyers are reluctant to schools, but it uses a series of tiebreakers to predict a verdict. determine who gets into a school where the number of requests exceeds available seats. The highest courts of Washington and the nation recently gave the Seattle School For high-school assignments, the first District added clout in its legal defense of tiebreaker favors a student who has a sibling race-based assignments of students to in his or her preferred school. The next schools. tiebreaker, race, is used only if a school's racial composition differs by more than 15 But the optimism of the district's lawyers is percentage points from the districtwide tempered by their awareness that predicting racial balance. court rulings is risky at best. The Washington state Supreme Court on While the U.S. Supreme Court affirmed the June 26 gave a ringing endorsement to the theoretical underpinning of some efforts to assignment plan, which it said does not boost racial diversity, it struck down a violate Initiative 200's ban on racial university admission process that discrimination or preferences. automatically gave an advantage to underrepresented minorities. "This court has repeatedly and clearly found that segregation offends the values of our The future of a racial tiebreaker used to national constitution, be that segregation de assign some students to Seattle schools will factor or de jure, and that school districts are depend largely on how the 9th U.S. Circuit empowered to work to end that Court of Appeals applies issues of federal discrimination," the state court ruled. law in a challenge filed by parents. Because the Seattle tiebreaker favors whites Parents Involved in Community Schools in some schools and racial minorities in (PICS) and the school district have been others, the state Supreme Court called the battling for three years over PICS' claim that plan "racially neutral." state law and the U.S. Constitution forbid race-based student assignment. The federal 9th Circuit, after initially striking down the race tiebreaker last year, The district maintains it can legitimately asked the state Supreme Court to determine consider students' race in order to give them whether the tiebreaker is consistent with an integrated education that will prepare state law. The case now goes back to the 9th them for a diverse society. Circuit, which will decide whether the tiebreaker violates the U.S. Constitution. Seattle's student-assignment plan generally

482 Three days before the state Supreme Court accomplish its goals. opinion, the U.S. Supreme Court endorsed affirmative action in a case Grutter v. When the U.S. Supreme Court approved the Bollinger involving the University of Michigan Law School's individualized Michigan Law School. But in Gratz v. system of giving minority students a Bollinger, the high court struck down an preference in admissions, it also struck down undergraduate admission process at the a more rigid, numerical plan at Michigan's university that automatically gave an undergraduate College of Literature, Science advantage to underrepresented minorities. and the Arts.

Justice Sandra Day O'Connor wrote in The undergraduate plan, which gave Grutter v. Bollinger that creating a diverse underrepresented minorities an automatic student body was "at the heart of the Law 20-point advantage on a 150-point scale, School's proper institutional mission" and made race the decisive factor for "virtually that tomorrow's lawyers need exposure to every minimally qualified" minority student, "widely diverse people, cultures, ideas, and the court found. Therefore, Chief Justice viewpoints." William Rehnquist wrote in Gratz v. Bollinger, the plan was not narrowly Seattle School District General Counsel tailored. Mark Green hailed that ruling and the state Supreme Court opinion as "a huge judicial In the PICS case, the 9th Circuit will decide statement about diversity" a view many whether the Gratz narrow-tailoring standard lawyers share. applies to public-school assignments as well as to a selective university-admission Assessing The Details process.

But will the finer points of the Seattle plan Key Test in Question survive judicial review when the case is finally resolved, either by the 9th Circuit or PICS attorney Harry Korrell said Gratz the U.S. Supreme Court? "does affirm that you cannot have just plain race balancing as your goal, which in our On that question, lawyers are in sharp view is exactly what the school-district plan disagreement. does. It says race cannot be the deciding factor, it can be only one factor among In reviewing affirmative-action and many, which is not what the school-district desegregation cases, federal courts apply plan does." two tests known as "close scrutiny." The Gratz case suggests Seattle's racial policy Atlanta attorney Alfred Lindseth, who has will easily pass the first test, a showing that represented school districts in desegregation the district has a compelling interest in cases and once advised Seattle on an earlier promoting diversity. assignment plan, agreed with Korrell.

The second test is whether the plan is "I think they'll have a tough time passing "narrowly tailored," that is, causes the least that test," Lindseth said. "They depend possible disruption of people's lives to solely on the race of the student, they're

483 completely mechanical, there's no judgment have a system based on merit and they want or meaningful review. ... If the decision is to make sure that merit isn't mechanistically based just on the race of the child, I think the applied. But in a situation where the school Michigan cases would say you can't do it." opportunities are largely fungible, you wouldn't have any reason to have a Others Disagree complicated review system of each applicant."

Washington, D.C., lawyer William Taylor, Curt Levey, an attorney for the Washington, who has litigated desegregation cases since D.C.-based Center for Individual Rights, the 1950s when he worked with the late which represented students who sued the Thurgood Marshall, said the U.S. Supreme University of Michigan, said that if courts Court's narrow-tailoring standard might were "perfectly logical," the Seattle district apply to a few high schools around the would have something else going for it: the country with selective admissions. He said state Supreme Court ruling. the standard does not seem relevant to regular high schools, which are "fungible," "Certainly if something passes the test for I- or interchangeable. 200, which allows no racial preferences, then it must pass the standard for the "The reason they outlawed a more Michigan cases," Levey said. "The 1-200 mechanical system," Taylor said, "is they standard is a tougher standard."

484 "On the Docket: Meredith, Crystal v. Jefferson County Bd. of Education, et al."

Medill News Service June 5, 2006 David Gialanella

Since desegregation, many Americans have brought a civil suit against the county in the considered diversity to be an invaluable U.S. District Court for the Western District societal quality, but in Jefferson County, of Kentucky. They claim their children's Kentucky, some students are being bused constitutional rights have been violated upwards of three hours a day roundtrip in based on the Equal Protection Clause of the the interest of diversity. 14th Amendment, the purpose of which is to ensure that all Americans enjoy equal In an effort to ensure that no one public protections under all laws. school has an overwhelming black or white population, Jefferson County has an The District Court upheld the plan almost in enrollment plan that places students in full, holding: "The 2001 Plan is a proper 'fit' different schools according to racial because it is sufficiently flexible to demographics. It requires that each school determine school assignments for all maintain a black population of no greater students by a host of factors, such as than 50 percent, but no less than 15 percent. residence, student choice, capacity, school and program popularity, pure chance and The plan, which has existed in varying race." In other words, race is a factor but not forms since a court-ordered desegregation the main factor in the enrollment process. policy for the county was handed down by a federal judge in 1975, offers a choice of The court based its opinion on the idea that schools, but not all preferences can be the Jefferson County plan does not amount accommodated, and an application process to a quota system, which is prohibited, is involved. However, according to statistics, according to precedent. about 95 percent of students are able to enroll in one of their two top choices of non- In Regents of the University of Californiav. magnet schools. Bakke, a 1978 U.S. Supreme Court decision, it was established that hard racial quotas The current arrangement, instituted in 2001, (such as requiring that each school maintain has some students being bused cross-county, a 34 percent black population, which would taking up more time per day than most be consistent with the county average) students spend in transit in several weeks. It violate the Constitution. poses obvious logistical issues and detaches children and their parents from the The District Court touched on this subject communities they call home, parents say. and found the county plan inoffensive to Equal Protection: "...some attention to Jefferson County parents who became fed numbers, without more, does not transform a up with busing and the complexities of flexible admissions system into a rigid enrollment (both magnet and non-magnet quota. Common sense and the Supreme schools have long admissions processes) Court suggest that any strict or de facto

485 racial quota has a couple of known based on demographics from thirty years characteristics: it has a precise target, and it ago; that Kentuckians are serving their insulates some applicants from competition diversity interest without need for the plan. with other applicants." Proponents of the plan argue that students The district court also noted that the plan is are still not being exposed enough to racially "narrowly tailored" to achieve a "compelling diverse environments, and that busing interest," which, in this case, is diversity; creates only a limited inconvenience. that is, race is used as a placement factor in a narrow and limited way. That standard was "The number of students who end up set forth three years ago in a pair of opinions making a trip they wouldn't normally make issued by the U.S. Supreme Court that dealt is a small price to pay for having diversity with undergraduate and law school throughout the system," said Francis J. admissions at the University of Michigan. Mellen Jr., the attorney representing the Opponents to the plan argue that an opinion county. pertinent to higher education cannot apply to public schools at the kindergarten through The case has gotten little media coverage in 12th grade level. Jefferson County since the Supreme Court announced on June 5, 2006 that it would The 6th Circuit Court of Appeals called the hear the case, but residents understand the lower court's opinion "well-reasoned" and implications of the Court's decision on their thus affirmed the decision without issuing an everyday lives. opinion of its own, which is rare. But now the U.S. Supreme Court has agreed to hear the case, which allows parents to take their "There seems to be a strong sense of Equal Protection challenge up one more maintaining integrated schools and fear level. about returning to the 'way things were'," stated Lauren E. Roberts, Public Information "It is the parents' feeling that this is no Officer for Jefferson County Public Schools, longer a segregated society ... we are not in an e-mail. going back to the 1950s," said Honi Goldman, Media Relations Coordinator for When the Court accepted review in the attorney Ted Gordon, who represents Louisville case, it announced it would set parents opposed to the plan. So, she said oral arguments in tandem with Parents during a phone interview, it is high time to Involved in Community Schools v. Seattle do away with an enrollment plan that is School District#1.

486 "Schools' Efforts Hinge on Justices' Ruling in Cases on Race and School Assignments"

New York Times June 24, 2006 Sam Dillon

School officials in Berkeley, Calif., take race within 15 percentage points of that average as well as parent income into account as by controlling school assignments. they assign students to public schools, with a result that many black children who live Over the past 15 years, courts have ended downtown are bused to classes in the mostly desegregation orders in scores of school white neighborhoods on the hills that districts. But many districts around the overlook San Francisco Bay. country seek to maintain diversity with voluntary programs like magnet schools and In Lynn, Mass., the authorities guarantee magnet programs, clustering plans that that children can attend their neighborhood group schools in black neighborhoods with school, but consider race in weighing those in white, and weighted admissions students' transfer requests, sometimes lotteries that assign classroom seats by race. blocking those that would increase racial imbalance. All of this is now a gray area of the law until there is guidance from the Supreme Court on And here in Louisville, the school board how far school systems may go in the quest uses race as a factor in a student assignment for racial diversity. plan to keep enrollments at most schools roughly in line with the district's overall Courts in the 1990's mostly struck down the racial composition, making this one of the use of race in assignment decisions, but most thoroughly integrated urban school three federal rulings since 2003 have systems in the nation. permitted its use. As the legal ambiguity has grown, hundreds of districts have dropped As different as they are, all these approaches voluntary efforts to maintain racial balance. and many more like them could now be in Others have vigorously pursued them, even jeopardy, lawyers say, because of the as a debate has emerged over whether Supreme Court's decision this month to racially mixed schools provide the nation review cases involving race and school with important educational benefits. assignment programs here and in Seattle. "Most school districts believe that there are "We'll be watching this very closely, educational benefits in having students because whichever way the Supreme Court attend school with other students of different rules, it will certainly have an impact on our backgrounds," said Maree Sneed, a lawyer district," said Arthur R. Culver, who filed a brief in the Louisville case on superintendent of schools in Champaign, Ill., behalf of the Council of the Great City where African-American students make up Schools, a coalition of the nation's largest 36 percent of students. Under a court- urban districts. "It prepares them to be better supervised plan, the district keeps the citizens." proportion of black students in all schools

487 But Roger Clegg, president of the Center for "School boards would be captives to the Equal Opportunity, a Washington group racial segregation that occurs in housing critical of affirmative action, said such markets," Mr. Orfield said. "Boards would assertions were based on "touchy-feely be forbidden to do what courts once ordered social science." them to do, and what they now want to do voluntarily." "It'd be dangerous for the court to allow discrimination whenever a school board How many of the nation's 15,000 districts produces some social scientist who claims currently consider race in assigning students that racially balancing schools to the nth to schools is unclear because no one keeps degree is essential for teaching students to track, experts said. A brief filed in the be good citizens," Mr. Clegg said. Louisville case by the Pacific Legal Foundation, a conservative public-interest The debate comes as immigration, housing law firm, asserts that "nearly 1,000 districts" patterns and ethnic change have made have some type of race-based assignment achieving racial balance in the schools an plan. increasing challenge. But that figure traces from a 1990 A study published this year by the Civil Department of Education survey of schools, Rights Project at Harvard University and David J. Armor, a George Mason reported that partly because of the rapid University professor who participated in that growth of Latino and Asian populations, the survey, said that in the 1990's, many districts traditional black-white model of American abandoned race-based plans. Still, he race relations was breaking down. Yet white estimated that "many hundreds of school students remained the most racially isolated districts" continued to use race in assigning group, even though they were attending students to schools. schools with more minority students than ever before, the report said. Many of the nation's largest urban districts have so few white students that large-scale Although whites in 2003-04 made up 58 plans to seek racial balance are hardly percent of the nation's public school feasible. New York, where 14 percent of population, the average white student students are white, does not consider race in attended a school where 78 percent of pupils school assignments, said Michael Best, the were also white, the study said. Department of Education's general counsel. The only exception is Mark Twain The proportion of black students attending Intermediate School in Brooklyn, where a schools where 10 percent of students or 1974 federal court order requires that the fewer were white increased to 38 percent in school's racial demographics be kept in line 2003-04 from 34 percent in 1991-92. with surrounding middle schools.

Gary Orfield, the project's director, said a At least a half-dozen cities have developed decision barring the use of race in student voluntary student transfer programs that assignments would most likely intensify involve enrolling minority students from an those trends. urban district in a suburban district.

488 The Jefferson County district in Louisville is one of the most thoroughly integrated urban A white lawyer, Teddy B. Gordon, ran for a school systems in the nation. That is partly seaton the Jefferson County School Board in because its boundaries include suburbs as 2004, promising to work to end the district's well as Louisville's urban core. Sixty percent desegregation plan. He finished last, behind of students are white, and 35 percent are three other candidates. black. Mr. Gordon represents the plaintiff in the Its student assignment plan, which evolved Louisville case, Crystal D. Meredith, who is from a court-ordered desegregation effort, white. She sued after the district denied her keeps black enrollment in most schools in request to transfer her son Joshua from the range of 15 percent to 50 percent by Young Elementary, in the West End, to encouraging, and in some cases obliging, Bloom Elementary, nearer her home. The white students to attend schools in black district said the transfer would disrupt neighborhoods, and vice versa. Young's racial balance.

Fran Ellers and her husband are writers who Judge John G. Heyburn II of Federal District are white. They live in the Highlands Court ruled against Ms. Meredith in 2004, neighborhood east of downtown. But they saying that the district had shown a enrolled their children, Jack and Zoe, at ''compelling interest" in maintaining Coleridge-Taylor Montessori Elementary in integrated schools. A federal appeals court the largely black West End. upheld that ruling, but the Supreme Court has now agreed to review the case. "We wanted a diverse environment," Ms. Ellers said. "When I toured Coleridge- In an interview, Mr. Gordon predicted that if Taylor, I was struck by the mix of black and Louisville's student assignment plan was white children, quietly working together as overturned, the schools would rapidly equals in a classroom." resegregate. But that should be of no concern, he said. Nechelle D. Crawford, by contrast, who is African-American and lives in the West "We're a diverse society, a multiethnic End, said her sons Keion and Jeron could society, a colorblind society," he said. "Race attend Coleridge-Taylor, but instead she is history." opted to send them to Wilder Elementary in a largely white suburb 25 minutes away by bus. "The boys love Wilder," Mrs. Crawford Chester Darling, the lawyer who represented said, adding that there are a number of parents in a 1999 suit challenging a school international students. "They have different assignment plan in Lynn, Mass., holds opportunities, see different faces." similar views. "If children are in segregated schools, de facto or not, as long as they are In a survey carried out in 2000 by the getting the education they need that's fine," University of Kentucky, 67 percent of he said. parents said they believed that a school's enrollment should reflect the overall racial Lynn, nine miles north of Boston, is one of diversity of the school district. 20 Massachusetts school districts that

489 receives financial incentives for promoting classroom space and parents' education and racial balance under state law. Lynn's plan income, as well as race in assigning the seeks to keep the proportion of nonwhite child. students in elementary schools within 15 percent of the overall proportion of "New parents would prefer to have their kids minorities in the district's student in a neighborhood school, that's pretty population. Last year, 32 percent of students overwhelming," said Michele Lawrence, were white, and 68 percent were nonwhite. Berkeley's superintendent. "But if I surveyed parents who have gone through the process Under the Berkeley plan, parents choose and met teachers, they would have a high three schools, and the district weighs percentage of satisfaction."

490 "Court backs Lynn use of race in school plan"

The Boston Globe June 17, 2005 Shelley Murphy and Maria Sacchetti

A federal appeals court yesterday ruled that testified in support of Lynn during the the Lynn public schools could continue federal trial. "It could be the beginning of a using race as a factor in student transfers, reopening of a desegregation effort. It opening the door for other school systems to recognizes the very positive benefits of devise similar ways to guarantee diversity in something that has been attacked widely." schools. The US Court of Appeals for the First The 3-to-2 decision on Lynn's voluntary Circuit, in the majority opinion written by desegregation plan offers an alternative for Judge Kermit V. Lipez, said race relations school systems at a time when most courts and academic achievement in Lynn have eliminated busing and other mandatory improved under the policy. race-based policies for assigning students. Lynn chose to create its own desegregation "We are persuaded by the extensive expert plan in the 1980s, hoping to prevent racial testimony in the record, rooted in strife and segregation. Its case is one of a observations specific to Lynn, that there are few nationwide that could redefine the role significant educational benefits to be derived race could play in assigning students to from a racially diverse student body in the schools. K-12 context," the court wrote. "Lynn has a compelling interest in obtaining those But the ruling is not necessarily the final benefits." word on the issue. The plaintiffs in the Lynn case, a group of white and minority parents, Judge Bruce M. Selya, who was on a three- say they will appeal to the US Supreme judge appeals court panel that found the Court, which has never weighed in on Lynn plan unconstitutional in October, voluntary desegregation plans in public wrote the dissent. schools. "The majority's eagerness to justify Lynn lets students attend their neighborhood departing from precedent frees it to strike schools, regardless of race, but students out on its own, fashioning a rule that flies in cannot change schools if their departure the teeth of the Supreme Court's stalwart would make either school more racially opposition to the use of inflexible, race- imbalanced. The plaintiffs complained that determinative methods in granting or the student assignment system was denying benefits to citizens," Selya wrote. discriminatory and denied their children a place in schools because of race. Lynn crafted its voluntary desegregation plan in the late 1980s. Students are not "This is precedent-making," said Gary required to move to another school to Orfield, a Harvard education professor and achieve racial balance, but beginning in director of the Civil Rights Project, who 1989, if they wanted to switch schools, they

491 could be denied a transfer if it would upset desegregation plans, leading to complaints the racial balance. that many schools have become predominantly minority again, said Chinh A school is considered balanced if its Le, a lawyer with the NAACP Legal nonwhite enrollment is close to the district Defense Fund in New York. In 1998, a average, 47 to 77 percent of an elementary federal court threw out the use of race in school's student body. Roughly a third of admissions to Boston's exam schools. Lynn's students choose to attend a school other than their neighborhood school. Yesterday's decision offers the highest judicial endorsement of a voluntary effort to In Massachusetts, the ruling allowing Lynn desegregate schools, Le said. to keep race as a factor will help 21 other school systems with voluntary desegregation "There have been a number of cases that plans, educators say. The point, they say, is have led to resegregation, and this case may that the judges have said that race can be be an antidote for that," said Le. used in some fashion. The ruling-while it only affects states "This decision allows cities like us and Lynn under the First Circuit: Massachusetts, and other cities to do what we think is best Maine, Rhode Island, and New Hampshire, for education," said Salem School plus Puerto Rico-could also influence Superintendent Herb Levine. "Some people pending legal battles elsewhere in the nation, would call it social engineering, and so be it. he and Orfield said. Last year, the Ninth But what it really is is that segregated Circuit Court of Appeals threw out the schools don't work for minority kids. They Seattle public schools' high school don't work for white kids either, especially assignment policy, which used race as a in the world as it is today." factor.

Boston attorney Michael Williams, who But, as occurred in the Lynn case, Seattle represents families in the suit against Lynn, school officials have been granted a said students in Lynn and elsewhere can rehearing, scheduled for next week, before a achieve academically without any specific larger panel of appeals court judges. racial mix. He said the system has improved Louisville, Ky., school officials, meanwhile, because of a change in demographics. argued before the Sixth Circuit Court of Appeals last week and are awaiting a ruling Chester Darling, an attorney who also on whether their voluntary plan is represents the plaintiffs, said yesterday's constitutional. ruling "grates against improved race relations" by allowing Lynn to keep a plan Massachusetts Attorney General Thomas F. that rejects transfers based solely on race. Reilly, whose office had defended Lynn's "What this case says is people are defined by plan in court, said the voluntary system their color," he said. "And you don't define works and "its goal is to prepare the children people by their color." of Lynn for the world they will live in and work in." Since the early 1990s, courts have released many school systems from court-ordered The 14,300-student school system is 62

492 percent minority, and many credit the Barbara George, Shoemaker's PTA voluntary plan with striking a compromise president, said she wanted her children to on integration that averted the racial tensions grow up in a diverse school, even if her that shattered Boston in the mid-1970s with neighborhood is largely white. court-ordered busing. But in 1999, a group of white, black, and Hispanic parents filed a "I'm grateful for diversity," said George, lawsuit asserting that the policy was who is white. "It enhances my children's discriminatory. experiences."

Lynn's voluntary plan has not achieved In last October's ruling against Lynn, the balance in all schools. About half of the judges said racial distinctions should always elementary schools and most middle schools be a last resort. They cited a 2003 decision have reached district averages for racial by the US Supreme Court that upheld the balance. The high schools are more diverse, University of Michigan's law school and students can more easily transfer from admissions policy, ruling that universities one to the other, according to the court may use race as a factor, but not the sole ruling. But Lynn officials say most schools factor, in admissions to achieve a diverse are more diverse than they would have been student body. if the school system didn't use race as a factor. Shoemaker Elementary School is 70 Yesterday's ruling upheld a 2003 decision by percent white, but would be almost all-white US District Judge Nancy Gertner, who without the plan. found Lynn's plan was constitutional

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