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On June 28, the United States Supreme Court struck down plans used by school districts in Seattle, Wash., and Louisville, Ky., that took students’ race into account in order to racially balance their schools. Both cases were decided under Parents Involved in Community Schools v. Seattle School District #1. 

 The Court’s decision was split 5-4, with two concurring and two dissenting opinions that together exceed 180 pages.

Justice Anthony Kennedy, who joined in a limited part of the majority opinion, wrote a separate concurring opinion that takes on import because he cast the swing vote. His opinion suggests that school districts may still use race-conscious measures to racially balance their schools in a “general” way, but that their ability to take the race of a student into account in making individual, student-by-student decisions has been substantially narrowed.

The decision will likely affect School District 65, which uses a 60-percent guideline in racially balancing its schools. Under the guideline, no racial group may exceed 60 percent of the student body of a school.

In an effort to meet the guideline, District 65 takes the race of a student into account in deciding whether to grant the student admission into King Lab and Bessie Rhodes magnet schools. The District considers the impact admitting the student will have on the racial balance of both the student’s attendance-area school and the magnet school.

“We want to have an analysis on what the restrictions are and what the possibilities are as we manage this into the future.” – Dr. Hardy Murphy

District 65 also takes the race of a student into account in deciding whether to grant the student permission to attend a school other than the student’s attendance-area school and whether to admit an English-dominant student into the two-way-immersion (TWI) program.

Superintendent Hardy Murphy told the RoundTable that he has asked District 65’s  attorney to analyze the Supreme Court’s decision and to evaluate what the District is currently doing against the decision. He said, “We want to have an analysis on what the restrictions are and what the possibilities are as we manage this into the future.

“This is a very significant issue,” Dr. Murphy added. “We’re trying not to react without having that kind of analysis.” 

         The Court’s Decision

The Seattle and Louisville plans 

The cases the Supreme Court decided involved plans voluntarily adopted by school districts in Seattle and Louisville to racially balance their schools. The plans contain some features similar to the methods used by School District 65.

The Seattle plan applies to the city’s 10 high schools and is used to racially balance the schools that would otherwise be segregated due to segregated housing patterns. The high schools are all theme or “choice schools.” If a school is oversubscribed by incoming ninth-grade students, the district applies prioritized “tiebreakers,” one of which is the race of the applicant.

The race-based tiebreaker is triggered if the racial makeup of the student body at a school differs by more than 15 percent from the makeup of the students of the District as a whole. Other tiebreakers are a sibling’s attendance at the school and geographic proximity.

In Louisville, the school district created “resides” areas and elementary-school clusters to facilitate integration. Incoming students could apply to two schools in their cluster. Decisions to admit students to a school within their cluster took the students’ race into account. Under the plan, each school was required to maintain a black-student enrollment of at least 15 percent and no more than 50 percent. Thirty-four percent of the students in the school district are black. 

The Majority opinion 

The majority opinion, written by Chief Justice John Roberts and joined in by Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Kennedy, held that the plans were subject to “strict scrutiny” because they made classifications based on race. In order to satisfy the strict scrutiny standard, the Chief Justice said, the school districts must demonstrate that the use of race in student assignment plans must be “narrowly tailored” and achieve a “compelling” governmental interest. This has been the standard test to evaluate the constitutionality of classifications based on race.

The Chief Justice gave two examples where the Court had previously found a “compelling” interest to take a student’s race into account in the school context: first, where the plan was to correct the effects of intentional discrimination by the school district; second, in the 2003 Grutter case in which the Court upheld that the University of Michigan’s admissions policy which took the race of a student into account as one of many factors in an effort to achieve a compelling interest “in diversity in higher education.”

The Chief Justice distinguished the Grutter case from the Seattle and Louisville plans on the basis that the diversity interest in Grutter was not solely in racial diversity, but other types of diversity such as fluency in languages, overcoming personal adversity and family hardship, community service, etc. The Chief Justice said, “The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a ‘highly individualized, holistic review.” He said the Seattle and Louisville plans did not consider race as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas and viewpoints, but for some students, race “is determinative standing alone.”

The majority thus held that the Seattle and Louisville assignment plans could not be upheld under Grutter. The Chief Justice, however, could not muster a majority to take the next step and hold that the elementary and high school districts in Seattle and Louisville lacked a compelling interest in a diversified education.

Instead, the majority concluded that the Seattle and Louisville plans were not “narrowly tailored” to achieve their stated ends. The majority concluded that in Seattle, only 52 students were affected by the racial tiebreaker; and in Louisville the racial guidelines accounted for only three percent of the assignments. The majority opinion said, “The minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications.”

The majority also held the school districts failed to show that they had considered methods other than explicit racial classifications to achieve their stated goals. “Narrow tailoring requires serious, good faith consideration of workable race-neutral alternatives,” the Chief Justice said. 

Plurality, concurring and dissenting opinions 

While the basis of the majority’s opinion was decided on limited grounds, the Chief Justice’s opinion contained sweeping comments in two sections that Justice Kennedy did not join in and that were supported by only three other Justices:  Scalia, Thomas and Alito. This “plurality opinion” has no precedential effect, but it provides the views of four justices.

The plurality opinion rejected the school districts’ arguments that they had a compelling interest to racially balance the schools because education and broader socialization benefits flow from a racially diverse learning environment. The plurality opinion rejected this argument, stating that the plans were “not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits” but instead were designed to attain “a level of diversity within the schools that approximates the district’s overall demographics.” The plurality held that the goal of racial balancing in itself was not a compelling interest and that “outright racial balancing” is “patently unconstitutional.”

In a separate concurring opinion, Justice Kennedy disagreed with the plurality opinion. He said, “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.” He said, “To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in school, it is, in my view, profoundly mistaken.”

Justice Kennedy said in his view, school districts “are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.” He suggested permissible strategies may include “strategic site selection of new schools, drawing attendance zones with general recognition of the demographics of neighborhoods, allocating resources for special programs, recruiting students and faculty in a targeted fashion, and tracking enrollments, performance, and other statistics by race.” He opined that these measures would pass Constitutional muster because they apply generally and did not make decisions with respect to individual students on the basis of their race. He said individual classifications “may be considered legitimate only if they are a last resort to achieve a compelling interest.” 

Four justices, Steven Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsberg, dissented. In a 77-page opinion, Justice Breyer concluded the student assignment plans “are supported by compelling state interests and are narrowly tailored to accomplish those goals.” He said, “A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it.” 

He concluded, “The last half-century has witnessed great strides toward racial equality, but we have not realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”

Analysis

Because Justice Kennedy’s was the swing vote, a racial-balancing plan that meets the parameters of his opinion may still pass Constitutional muster because it would be supported by him plus the four dissenters. In addition, because the Court did not expressly overrule Grutter, a plan that considered race as one of many factors in order to attain “diversity” may be defensible. It is unclear though whether the factors considered important by the Court in Grutter at the university level could be applied at the elementary school level.

In a written analysis provided to the RoundTable, Jonathon Baum, a former Board member and civil rights attorney, said he thought the Supreme Court’s decision would continue to permit School District 65 to draw attendance area lines with an eye toward maximizing racial diversity in each school, and to actively recruit students to enroll in magnet schools with an eye to minimizing racial imbalances in attendance area schools and at the magnet schools themselves. He thought, though, that using race as a factor in deciding whether to grant an individual student admission to a magnet school or to grant a permissive transfer would be held unconstitutional.

Mr. Baum also opined that the District could use “race neutral alternatives” to bring together students from diverse backgrounds. He said, “An example of such a ‘race-neutral alternative,’ although the Court does not mention it specifically, is, of course, the kind of assignment system that seeks to minimize concentrations of poverty that we have discussed. I think this is important for future Board’s discussions of this issue.”

During the past ten years, a number of school districts have decided to balance their schools by income, rather than race, including Wake County, North Carolina; Cambridge, Massachusetts; St. Louis, Missouri; and LaCrosse, Wisconsin. Some of these decisions were in response to lower court decisions that school districts could not take race into account in deciding whether to admit a student to a school, even if the goal was to racially balance the school.

Other school districts have made the decision to balance their schools by income for educational reasons. “Divided We Fail: Coming Together Through Public School Choice,” a 2002 report from the Century Foundation Task Force, states, “eliminating the harmful effects of concentrated school poverty is the single most important step that can be taken for improving education in the United States.”

D65 Next Steps

Dr. Murphy told the RoundTable that the Supreme Court’s decision will be on the Board’s agenda for the July 16 meeting. He said he expected the District’s attorney to give a report to the Board at that meeting and that the report would be in open session.

School District 65: Racial Balancing of Schools

School District 65 adopted a voluntary desegregation plan in 1967. Since then the District has redrawn school attendance areas from time to time in an effort to racially balance its schools and to relieve overcrowding. The District has also managed admissions to its magnet schools in an effort to racially balance both the attendance area schools and the magnet schools.

In 1985 the School Board adopted the 60-percent guideline. Under the guideline, “no defined racial group shall exceed 60 percent of a school population.”

The race of an applicant to a magnet school is considered in evaluating whether the student’s leaving the attendance-area school will throw the student’s attendance area school out of compliance with the 60-percent guideline. The race of an applicant is also considered in evaluating whether the student’s admission to a magnet school will throw the magnet school out of compliance with the 60-percent guideline.

The Board’s policy manual states, “Admission to the magnet schools shall promote racial balance and relief of overcrowding both at the magnet schools and the attendance area schools.” The goal is to manage admissions to the magnet schools in such a way that no racial group exceeds 60 percent of the student body at any school.

The District also takes race into account in deciding whether to grant permissive transfers. The Board’s policy manual states that “permissive transfers shall be based upon the impact they might have on the space utilization and racial balance of the schools involved.”

The District also takes the race of students into account in an effort to racially balance two-way immersion (TWI) classrooms in the District. District officials have said the goal is that “the gender and ethnicity of the English dominant students should reflect the makeup of students in other classrooms at the program sites.”

For prior stories about District 65’s historical efforts to desegregate and to racially balance its schools, see the online edition of the RoundTable.