In response to patterns leading to the rapid resegregation of public schools in cities across the country, many local school boards have enacted voluntary plans meant to help maintain diversity in their schools. Somewhat ironically, these plans have spawned lawsuits nearly identical to the cases brought in the 1950s and 60s by African American students seeking admission to schools racially segregated by law. Both sets of cases claim that making school assignments based on race violates the equal protection clause in the Constitution. The difference is that now the plaintiffs are white.
This week, the Supreme Court agreed to hear cases brought by white students in Louisville and Seattle who claim that policies in those cities unlawfully denied them admission to certain schools based on their race. Both plans were judged constitutionally permissible by the court below, but now the Supreme Court will get the final say.
Neither Seattle's nor Louisville's plan uses race as the only factor in making school assignments, but rather as one among many. In Louisville, parents are able to freely choose their children's schools so long as each school in the district maintains a minority enrollment between 15 and 50 percent. In Seattle, the plan requires school authorities to take a student's race into account as a "tiebreaker" only if that student is applying to a high school that already deviates by more than 15 percent from Seattle's systemwide racial balance. The most important thing to know is that both plans are voluntary -- not imposed by a court order -- and enacted for non-discriminatory purposes -- these districts have judged that it is in the best interest of all students to have schools that more accurately reflect the demographics of the broader communities the students will be a part of after graduation.
The Supreme Court's agreement to hear the cases was quite a surprise. In 2003, the Court ruled on similar issues regarding the use of race in admissions policies at the University of Michigan law school. In that 5-4 decision, written by now-retired Justice Sandra Day O'Connor, the Court upheld the law school's use of race as one factor in admitting students, though it warned that the days when such affirmative action would be permissible were not without limit. In the grade school context, the Court refused to hear a case from Lynn, Massachusetts, identical to that of Louisville and Seattle as recently as December. Why the shift?
The answer, of course, is that while the issues have not changed, the Court itself has. These cases mark the first opportunity for the court of Chief Justice John Roberts to define itself on such a big social issue. Whether the loss of the difference-splitting Justice O'Connor and her replacement with conservative jurist Justice Samuel Alito will result in a reversal on the affirmative action front remains to be seen. Justice O'Connor was still on the bench when the Court declined hearing the Lynn case.
Regardless of the outcome, however, the ideological lines in these cases reflect the enormous shift in the role of the equal protection clause in civil rights jurisprudence since the days when the first desegregation lawsuits were filed. Specifically, the idea of local control of schools has switched sides. During desegregation, conservative scholars, lawyers, and judges derided efforts by courts to tell local school authorities how to run their schools. Local control, it was argued, was a necessary characteristic of effective school administration. Now, conservatives find themselves looking to the courts for help, seeking court-ordered school admission for white students rather than allowing plans enacted by local authorities to stand. Meanwhile, liberals who once pushed for a broad and strong equal protection clause that could override local school decisions that violated it are stuck arguing for its limitation while insisting, as the conservatives once did, on leaving local school decisions to local authorities. How times have changed.
The outcome of these cases, expected to be heard late in the fall, will determine whether public schools across the country will be able to take measures meant to ensure diversity in their classrooms or whether the return to segregated schools, albeit de facto rather than de jure, will be accelerated. It would be unfortunate if after a half-century attempting to integrate public schools, we ended up right back where we started.
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