Statement of Dennis Parker, Director, ACLU Racial Justice Program

WASHINGTON – This year in two cases from Kentucky and Washington State, the Supreme Court will review constitutional limits on the consideration of race in the context of student assignment to elementary and secondary schools. In so doing, it will necessarily harken back to the assumption articulated in a 1970s-era segregation case that school districts may take race into consideration in creating student assignment plans.  The decision will also address the way in which its holdings in the more recent Michigan higher education cases are to be applied to K-12 schools.

The fact that the two school districts before the Court have different histories and operate very different programs demonstrates that the decisions may have an impact on student assignment practices in a large number and wide range of school districts throughout the country. That these very different districts share a belief that assuring diverse schools serves extremely important educational goals suggests that the effect of the decision will go far beyond the mechanics of student assignment and may profoundly affect the way that the nation addresses questions of race in the post-Brown v. Board of Education era.

In the 1971 case Swann v. Charlotte-Mecklenberg, the Supreme Court paused in the midst of its consideration of the scope of Court authority to remedy unconstitutional school segregation to comment briefly upon the discretion of school districts to address racial segregation voluntarily. Noting that school authorities are traditionally charged with broad power to create educational policy, the Court stated that school districts might be correct in concluding that “in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole.”

Three years ago, in two cases involving the University of Michigan and its law school, the Court turned to the question of the legality of race conscious admissions in the context of higher education. There it concluded that diversity could, in some circumstances, justify the 
consideration of race and that the University of Michigan Law School’s admission program, which did consider race, passed constitutional muster.

In McFarland v. Jefferson County Public Schools, the legal attack on the efforts of Kentucky’s Jefferson County to maintain desegregated schools highlights the historical ironies of the effort to end voluntary school desegregation. From 1973 to 2000, Jefferson County operated under federal court supervision under which it was compelled to take steps to desegregate schools which had previously been segregated unconstitutionally on the basis of race.  During the period of court supervision, the school district used various methods to eliminate unconstitutional segregation. Once court supervision ended, the Jefferson County School District made efforts to maintain desegregated schools, arguing that maintaining racially integrated learning environments benefited all students educationally.

Should the petitioners prevail in their attack upon these efforts, Jefferson County may be prevented from considering race as one factor in student assignment. In that event, the county may find itself in the anomalous position of being forbidden to do what it had previously been compelled to do by a federal court.

Although Seattle has never been under court order to desegregate, its efforts to desegregate its schools also goes back decades.  Beginning in the 1960’s, Seattle tried to correct the racial imbalance in schools that resulted from stark patterns of residential segregation. After trying a series of approaches and considering a range of alternatives, Seattle adopted a plan for the 1998-1999 school year in which students would be allowed to choose between schools. Admission to over-subscribed schools would be determined by four “tie-breakers,” one of which considered race and would come into play only if the oversubscribed school were racially imbalanced.  This attempt to address racial imbalance resulted in a challenge to the program, Parents Involved in Community Schools v. Seattle School District.

Like Jefferson County, Seattle’s commitment to diverse schools resulted from its belief that doing so would achieve valuable educational goals for all of its students that could only occur in racially diverse settings. Like Jefferson County, Seattle faces the prospect of being barred from achieving these goals through the use of a voluntary desegregation program.

The Court’s ultimate decision will undoubtedly be influenced by the degree to which it follows its earlier decisions in the Michigan higher education cases and the manner in which it applies those earlier decisions. As they do in higher education, diverse educational settings play an important role in K-12 education. As the Court has recognized in previous cases involving considerations of race, context is important. Therefore, differences in elementary and secondary education and higher education must be taken into account. The Court should consider the difference between choosing students to attend an institution with limited seats and assignment to schools within a system where all students are guaranteed access to educational opportunities. Equally important are all of the other differences between younger, more impressionable students and the older students in institutions of higher learning.

Given the nation’s increasing diversity and the simultaneous increase in the re-segregation of the nation’s schools, the stakes for the decisions are indeed high. The cases may very well influence whether the increasingly diverse nation faces the 21st Century with school systems that resemble those from our discriminatory past or that truly represent the face of the future.

The ACLU's amicus brief in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education is available at: www.aclu.org/scotus/2006term/ parentsinvolvedincommunityschoolsv.seattleschooldistrictno.1 meredithv.jeffersoncountyboardofeducation/27069lgl20061013.html.