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Posted Dec. 1, 2006

School Integration Cases Will Test Roberts Court, Says Brown-Nagin

Tomiko Brown-Nagin
Prof. Tomiko Brown-Nagin participated in a briefing on the school integration cases sponsored by the American Constitution Society for Law and Policy and the Center for American Progress in Washington, D.C. Nov. 29.
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Mary Wood

If the Supreme Court overturns school policies that encourage racial integration in two cases to be heard by justices next week, it will be backtracking on its own recent jurisprudence on desegregation and diversity in education, according to Virginia law professor Tomiko Brown-Nagin.

In Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board, the court will determine how the diversity rationale for using race in higher-education admissions, upheld in the 2003 Grutter decision, applies in K-12 education.

In Grutter, Justice Sandra Day O’Connor cast the decisive vote, but two new justices have since joined the bench. Oral arguments will take place Dec. 4.

“The cases pose the question of whether the Supreme Court should forbid elected school boards from remedying racial isolation not because they have to, but because they want to,” Brown-Nagin said. “If the court strikes down these policies, it will have written an astounding final chapter to Brown,” the landmark Supreme Court decision ending legal segregation.

Brown-Nagin has co-authored an amicus brief in support of the school districts with Ted Wells of the law firm Paul, Weiss, Rifkind, Wharton and Garrison. The brief was written on behalf of civil rights-era historians, including Virginia law professor Risa Goluboff

Parents have challenged school districts in Seattle and Jefferson County (Louisville), Ky., for using race as one of several factors in determining which schools students attend. In Seattle, the school district considers race as a factor in assignment to oversubscribed high schools only, after non-racial factors are taken into account.  The same is true in Louisville, where race is considered to maintain a black student population in a range of 15 to 50 percent in each school. In both instances, the policies have a minimal impact, Brown-Nagin said.

“The majority of students attend schools of choice even when race is a factor in assignment,” she said, “and both whites and minorities are affected by the policies.  

“On the spectrum of race-conscious policies, these are the most modest ones the court has been asked to review in years,” said Brown-Nagin. “These are not affirmative action policies in any meaningful sense.”

Many conservative commentators seem confident of victory, however.

“The court’s composition has become more favorable to the conservative public interest lawyers who have brought the series of cases over the years that have undermined programs to remedy racial discrimination in a range of areas, including in education,” she said.

Chief Justice John Roberts and Justice Samuel Alito are the keys to conservatives’ hopes of success.

“In League of United Latin American Citizens v. Perry (2006), the chief justice dissented from the court’s opinion finding that a Texas redistricting plan violated the Voting Rights Act, buoying opponents of race-conscious remedies,” Brown-Nagin said.

Roberts wrote in his dissent, “It is a sordid business, this divvying us up by race.”

“That statement suggests a global aversion to race-consciousness,” Brown-Nagin said.  “So the relatively modest scope of the Seattle and Louisville policy may not matter to Roberts or Alito, who joined the chief justice’s Perry dissent.”    

Justice Anthony Kennedy, who wrote the court’s opinion in Perry, will be the swing vote in the Louisville and Seattle cases and may vote in favor of the school districts’ policies, she said.

“But Kennedy’s views on race-conscious policies do not bode well for school boards, either.” 

Kennedy voted against both the undergraduate and law school admissions policies at issue in the University of Michigan cases.

“But in Freeman v. Pitts, Kennedy showed great deference to a school board’s arguments against the continuation of a mandatory school desegregation decree. He voted to terminate the decree. By the same logic, he may be deferential to these school boards’ arguments in favor of a voluntary desegregation program; but, then again, he may not. The court may no longer have a centrist voice on race.”

Following the Brown v. Board of Education decision in 1954 and subsequent efforts by the courts and politicians to end desegregation, 43 percent of African-American students attended majority-white schools in the South by 1986. By 2001 that number dropped to 30 percent. Meaningful desegregation didn’t begin in Jefferson County until 1975, and under court order, Brown-Nagin pointed out. In Seattle, school segregation by custom and practice was the norm until the 1960s and 1970s.

As Brown-Nagin sees it, the voluntary programs should be viewed as a logical outgrowth of cases like Freeman v. Pitts, where the court retreated from enforcing aging mandatory school desegregation decrees, using local control over educational policies as a rationale for removing federal oversight. Those cases, coupled with the 2003 Grutter ruling, would seem to support “modest, voluntary, community-based efforts to desegregate schools,” she said. 

“School boards and citizens in Jefferson County, Seattle and the many other districts with voluntary school desegregation programs have embraced the ideals animating Brown," she said. "These districts are trying to cope with the legacy of discrimination in their communities and their policies reflect democracy in action on the ground.”

In Louisville, a reported 80 percent of parents support the school district policies, Brown-Nagin said, and in Seattle the school board has constantly adjusted the policy in response to parental input.

If the court strikes down the policies in Seattle and Kentucky, “School districts likely will spurn any policy that smacks of race-consciousness and schools will look even more like they did before Brown.” 

Some districts may turn to facially race-neutral policies that may offer some of the benefits of race-based school desegregation, for instance, by considering students’ socio-economic background in assignment. 

“But given the close relationship between an individual’s race and class, opponents could attack these programs, too, as subterfuges for race-consciousness,” she said. “The lawsuits could be endless.”
• Reported by mary wood