Fifty-two years ago, the Supreme Court in Brown v. Board of Education declared that the Constitution embraces the social science idea that white and minority students benefit from going to public school together – a key to the decision to strike down segregation by law. And 51 years ago, Brown II ordered that goal to be pursued with “all deliberate speed.†In oral argument in two cases on Monday, Dec. 4, the Supreme Court will explore whether to put new constitutional limits on how public schools may seek that goal.
Potentially, the outcome may turn out to be of lasting cultural significance, like another Brown. The written arguments in the cases of Parents Involved in Community Schools v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915) make it seem that portentous. And the Court, signaling the importance of the cases, will promptly release the audiotapes of each case for public re-broadcast.
The core question is whether a public school system that is not trying to dismantle officially segregated schools may nevertheless assign some students to schools based upon their race, in order voluntarily to try to break down “racial isolation†– that is, students going to school mainly with classmates of the same race. The Court has never ruled on the use of race in K-12 schools except as a means to end official segregation.
Many of the nation’s schools, the Court has been told, are still segregated by race (due largely to housing patterns) – with more than a third of the country’s black and Latino students attending schools that are 90 percent or more minority. Plans adopted by the Seattle and Louisville, Ky., public schools to ease that situation are at stake in the two new companion cases.
The Seattle case, up first Monday, will be argued for the challenging parents by Harry J.F. Korrell of Seattle’s Davis Wright Tremaine. He will yield 10 minutes of his half-hour to the federal government, supporting the challenge; U.S. Solicitor General Paul D. Clement will argue for the U.S. For the school district will be Michael F. Madden of Bennett, Bigelow and Leedom in Seattle.
The Court has chosen a different arrangement for the Louisville case, to be argued starting at about 11 a.m. Solicitor General Clement, again, will support the parent challengers, but with a larger role. The Court assigned him 15 minutes after he had sought only ten, the usual amount for a divided argument. Teddy B. Gordon, a Louisville practitioner in a firm of his own, gets the first 15 minutes – cut back from the usual 20 in a shared argument. Gordon filed only a nine-page brief on the merits – a filing that Court aides initially thought must have been a mistake. The Court apparently wanted to make sure that the oral argument on that side was more extensive. Frances J. Mellen, Jr., of Louisville’s Wyatt, Tarrant and Combs will argue for the city-county school district.
The two cases differ in several basic respects. The Seattle school system has never been officially segregated by race; in fact, it was the first system in a major city to voluntarily desegregate. The Louisville schools had been segregated; the district was under a court-ordered desegregation mandate until 2000. Thus, both assignment plans now at issue before the Court are voluntary. Seattle’s race-based assignment plan applies only to high schools, while the Louisville plan applies to elementary schools, too.
The key feature of the Seattle plan is the use of a racial “tiebreaker.†Students generally are given a choice of the high school they want to attend. But, if that school’s student body deviates more than 15 percent from the racial division in schools citywide, it is considered racially imbalanced, and students whose race would add to the imbalance may not be allowed that choice (other factors, though, might support their choice).
The Louisville city-county plan also begins with student choice. Each school is to seek a black enrollment of at least 15 percent and no more than 50 percent. Other non-race factors are considered before race. But, if the racial makeup of an individual school lies near to either end of the racial range, that can result in denial of an individual student’s enrollment at that school, based on his or her race.
Both plans have been upheld in lower courts – the Seattle plan in the Ninth Circuit, the Louisville plan in the Sixth Circuit. The Justices granted review of the cases last June 5, and ordered them argued in tandem.
An underlying issue in the cases is whether the Court will reconsider its ruling in Grutter v. Bollinger in 2003, allowing public colleges and universities to use race as one factor in deciding who gets admitted in a competitive admissions system. The Court there found that, at the higher education level, students benefit from diversity in race and other facets so the institutions are allowed to take some limited steps to promote diversity.
Some of the briefs in the new cases explicitly ask the Court to overrule Grutter, arguing that any use of race in education is unconstitutional when used to achieve anything other than the end of official segregation. But there also is argument that, if Grutter remains, it should apply only to the college level, not to K-12 public schools.
Supporters of the two plans argue that the opponents are treating a desire to integrate – that is, to end racial isolation – as if it were no different from a desire to segregate by race. The plans’ backers counter that a vast amount of social science research supports the value in education – and in American life in the global community – of having students learn in a racially diverse environment. (Some opponents of the plans dispute that the research is solid or uniform.)
There is much rhetoric in the supporters’ arguments about upholding “the promise†or “the vision†of Brown – not simply to end mandated segregation, but to achieve the social benefits of a racially diverse learning experience.
Numerically, there is a considerable imbalance in the amici filings. There is a total of 13 amici briefs supporting the parents’ challenges in one or both cases, while there are 49 such filings on the side of one or both of the school districts.
The parents, though, have strong support from the Justice Department, which filed a separate amicus brief in each case. While it does not take a position on whether the Grutter decision should be overruled, or on whether that decision’s principles should ever be applied to the K-12 level, it does argue that both plans go far beyond the narrow and limited use of race allowed in Grutter, because both plans lump students into racial categories, and do not provide for any individualized consideration of how a student might contribute to, or detract from, racial or other diversity.
The government briefs argue that any use of race in education must be judged by a “strict scrutiny†standard. Supporters of the plans, however, argue in favor of intermediate-level scrutiny, or even rational basis, with strong deference to local control of public schools.
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