Educational Policy, Ethics, & Leadership

The Supreme Court and the Affirmative Action Cases

FindLaw.com commentator and law professor Edward Lazarus has a column, "The Supreme Court Grants Review in Two Cases Regarding Public Schools' Use of Race In Pupil Placement - And Thus Confronts the Question of How To Define Brown's Legacy."  LINK

 

This week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Kentucky and Seattle, Washington, the Court's eventual decisions will directly affect hundreds of other school districts, across the country, that use race in some fashion in determining which students will attend which schools.

The decisions will also go a long way towards revealing whether our newly reconstituted Court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the Court's take on the highly contested legacy of Brown v. Board of Education.

Affirmative Action Cases at Supreme Court

Yesterday, we told you that the U.S. Supreme Court had agreed to take up cases from Louisville, KY and Seattle, WA, dealing with affirmative action.  There is a great deal of press today.  The best single resource is Howard Bashman's How Appealing which links to the various news reports.  LINK

The New York Times' Supreme Court correspondent Linda Greenhouse has an article, "Court to weigh race as factor in school rolls."  LINK

The eventual decision on whether they can take race into account could affect hundreds of school systems in all areas of the country. The court accepted challenges to plans in Louisville, Ky., where the schools were once racially segregated by law, and in Seattle, where segregation was never official but was widespread because of residential patterns.

SCOTUS Blog's Lyle Denniston has informed analysis.  LINK

Last October, judges on the Ninth Circuit Court observed that "the Supreme Court has never decided a case involving the consideration of race in a voluntarily imposed school assignment plan intended to promote racially and ethnically diverse [public] schools." A year ago, judges on the First Circuit Court said much the same thing: the Supreme Court "has not yet considered a constitutional challenge to a voluntary race-based transfer policy for elementary and secondary schools..." The Court had a chance to consider that issue last December, but passed up the chance. Now, with a change in composition, the Court has opted to take it on. There may be a connection.

In more than a half-century of dealing with racial issues in the public schools, the Court has not ruled on a case in which race is not used as a way to separate the races in the K-12 grades, in which race is not used to provide a benefit to one race but not to others, and in which racial assignments or busing are not used to dismantle official segregation of schools, classrooms or faculties. In other words, the new generation of cases on schools and race are not the traditional kind under the original 19th Century purpose of the Fourteenth Amendment's equal protection clause. "We are here working from doctrines concerning the use of race-based criteria that are mainly the product of 20th Century jurisprudence," remarked First Circuit Judge Michael Boudin.

More on Supreme Court Decision

Associated Press has a report on the Court's action.  LINK

In one of the cases, an appeals court had upheld Seattle's system, which lets students pick among high schools and then relies on tiebreakers, including race, to decide who gets into schools that have more applicants than openings.

The lower court decision was based in part on a Supreme Court ruling three years ago, written by O'Connor, which said that colleges and universities could select students based at least in part on race.

The court also will also consider a school desegregation policy in Kentucky. That case is somewhat different, because the school district had long been under a federal court decree to end segregation in its schools. After the decree ended, the district in 2001 began using a plan that includes race guidelines.

U.S. Supreme Court to Hear School Cases

Earlier today the U.S. Supreme Court agreed to consider the use of race in student assignments.  The question is raised in lawsuits in Seattle, Washington and Louisville, Kentucky.  Here is the information from SCOTUS Blog.  LINK

The Supreme Court agreed on Monday to consider the use of race in student assignments in two urban school districts -- the first time it will take up the affirmative action issue since its rulings in 2003 on college admissions. The cases are from Seattle and Louisville, Ky. The Court had examined the two cases six times before deciding to hear them, with arguments due in the new Term opening in October.