An Educated Guess: Initial Guidance on Diversity in Public Schools After PICS v. Seattle School District

Introduction

On the last day of its term, the United States Supreme Court handed down a decision in two much-awaited school cases that will impact the ways in which public schools use race in student assignments. Completing its first full term with a conservative majority, the Court issued a consolidated decision invalidating the use of race in the student assignment policies in Seattle and Jefferson County, Kentucky. Parents Involved in Community Schools v. Seattle School District No. 1., 127 S.Ct. 2738 (2007).

The decision is as important for what it held as for what it did not. Although a five member majority of the Court invalidated the two plans before it, a different group of five made clear that achieving the educational benefits of diversity remains very much a compelling interest that school districts across the nation may pursue. The Court’s decision leaves schools with options to continue using race to avoid racial isolation and promote the educational benefits of diversity,

To determine what viable options schools may pursue, the unenviable task of counting justices—often a matter for law professors and law students trying to decipher the real or constructed meaning of a decision—falls to school board attorneys, school board members and superintendents. This primer is a first step towards that decoding and is intended to address some of the immediate questions that have arisen in the wake of the Court ruling. This guidance document relies heavily on Justice Kennedy’s concurring opinion because it was his vote that meant a majority of the Supreme Court believes the use of race in K-12 student assignment plans to achieve the educational benefits of diversity or avoid the harms of racial isolation is a compelling interest. The four dissenting justices with whom Kennedy sided on this point went further than he did in their legal reasoning to reach this conclusion, but can be presumed to agree with him and might do so in future race cases. This gives Kennedy’s opinion added weight.

This paper is the first in a series of publications designed to address the developing legal issues around diversity as the opinion is framed by the decisions of other federal courts. The series is intended as a complement to the policy guidance provided in a joint NSBA and College Board publication to be issued in September 2007, titled Not Black and White: Making Sense of the United States Supreme Court Decisions Regarding Race Conscious Student Assignment Plans. In the meantime, school boards should carefully consider the complex issues of race in student assignment with the assistance of their school board attorney and their communities to devise plans that serve the educational needs of all their students.

  1. Now that the Court has issued its decision, how quickly does a school district need to act?
  2. Is achieving the educational benefits of a diverse student enrollment a compelling interest in the K-12 context?
  3. What analysis will a court use to determine if a voluntary policy or plan that uses a racial classification is narrowly tailored?
  4. Must a voluntary plan or policy that uses race as a factor to make individual determinations also include other considerations besides race?
  5. Can school districts make voluntary race conscious decisions other than adopting student assignment plans that use race as a factor?
  6. Are single race programs and curricula geared toward a particular ethnic/racial group permissible?
  7. Are the No Child Left Behind Act’s (NCLB) requirement that districts report the performance of racial subgroups and the imposition of consequences when any such subgroup fails to meet adequate yearly progress (AYP) standards valid?
  8. Can race be a factor in magnet school admissions that are not part of a mandatory desegregation plan? And, if so, how?
  9. What race-neutral alternatives have other districts used, and how have they implemented them?
  10. Can school districts that have not reached unitary status and are under current court-ordered desegregation plans continue to classify individual students by race for purposes of school assignment?
  11. Can school districts that have reached unitary status and are released from any court supervision, including settlement agreements, continue to classify individual students by race for purposes of school assignment?
  12. Does the Court’s decision apply to districts that have reached unitary status, but are still under a court-supervised plan such as a settlement agreement?
  13. What about districts that have 441B voluntary plans entered into with U.S. Department of Education’s Office for Civil Rights (OCR)?
  14. Can a school district draw attendance zones to promote diversity and reduce racial imbalance?
  15. Is litigation inevitable if a school district already has or later adopts a race conscious plan?
  16. Won’t race-neutral alternatives like socio-economic status (SES) just be challenged as proxies for race?
  17. Does the decision apply to cases that have not reached a final appeals decision? Is it retroactive?
  18. Does the decision impact the question of whether teachers can be assigned to schools based on the teacher’s race/ethnicity?

1. Now that the Court has issued its decision, how quickly does a school district need to act?

The Court did not provide a timeline for specific action. The timing of the Court’s decision and the magnitude of the logistics involved in altering student assignment plans may make it impracticable, if not impossible, for many school boards to make substantive changes to student assignments for the 2007-2008 school year, even where some of those decisions may have included race as a factor. School districts that have voluntary student assignment plans that include race should consult closely with their school attorney before making any future decisions based on a student’s race.

School boards are well-advised to move deliberately, but methodically to review their own student assignment plans. Taking steps as soon as possible to minimize the race-based nature of a plan¯especially any features that base decisions on an individual student’s race and any race-conscious features that lack a very clear and defensible connection between the policy and the “compelling interest” it seeks to achieve¯may reduce the chances the plan will be challenged

In Louisville, for instance, the district has devised both short and long-term steps. The school board has endorsed a plan for the 2007-08 school year that leaves most of the already completed student assignments in place but instructs principals not to consider race as to any new or transfer students. For the longer term, the district has established a plan to seek extensive input from the community to develop its new strategy for maintaining diversity to achieve educational goals while complying with the Court’s ruling.1 As of this writing, this approach is being submitted to a federal court for review. For the long term, school boards should ensure that all features of their student assignment plans comply with the Court’s ruling.

2. Is achieving the educational benefits of a diverse student enrollment a compelling interest in the K-12 context?

Yes. The four dissenting Justices and Justice Kennedy concluded that achieving the educational benefits of diversity or avoiding the harms of racial isolation in the K-12 context is a compelling interest. Kennedy’s language about diversity as a compelling interest is particularly relevant because while the dissenters would go further than Kennedy, they can be presumed to agree with him.

Kennedy states, “[d]iversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.” He goes on to say schools can continue to attempt to diversify schools, and school boards should not be afraid that any decision which contemplates racial diversity will be declared unconstitutional. Kennedy also writes, “A compelling interest exists in avoiding racial isolation . . . . Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification.”

3. What analysis will a court use to determine if a voluntary policy or plan that uses a racial classification is narrowly tailored?

The Supreme Court’s analysis provides some guidance on what school districts must consider to ensure their voluntary race conscious policies and plans are narrowly tailored to a the interests in maintaining diverse student enrollments in their schools.

a. Ensure the use of race is necessary.

A majority of the Court agreed that if a racial classification has a minimal effect on student assignment, then the policy is probably unnecessary because there are other effective means to create the same racially integrated environment.2 For example, in Seattle only 307 students were affected by the racial tiebreaker; over one-third of those students were assigned to the same school they would have been assigned without the racial tiebreaker; and only 52 students were assigned to a school not listed as a preference. Likewise, Jefferson County estimated that its racial guidelines accounted for only three percent of assignments. Therefore, when determining whether the use of racial classification is necessary, the lower court will likely gauge the impact of the policy by reviewing the number of students whose placement was determined by race.

While the Court opined that a greater use of race would not be preferable, the Court did not state when the use of race makes too little or too much difference. But, the Court did cite the Grutter plan favorably, noting race was “indispensable” in more than tripling minority representation at the law school from 4 to 14.5 percent. This suggests that when adopting a student assignment plan that uses race as a factor, a school district should try to determine the impact of the racial classification.

Things to keep in mind:

  • How many students will be affected by a racial classification?
  • Is it so few that a factor other than race could be used to accomplish the same result?
  • What is the projected percentage change of the racial composition of each school under the proposed student assignment plan?
  • Is the use of race “indispensable” to creating or maintaining diversity or would using other factors achieve the same result?

b. Consider and where appropriate try race-neutral alternatives first.

The Court also agreed the plans in these cases were not narrowly tailored because the districts did not consider methods other than explicit racial classifications. Seattle rejected assignment plans that did not use race as a factor with little or no consideration, and Jefferson County did not present any evidence it had considered race-neutral alternatives.

According to the Court, narrow tailoring requires “serious, good faith considerations of workable race-neutral alternatives.” Unfortunately, the Court offered no explanation for what constitutes “serious, good faith considerations of workable race-neutral alternatives.” Justice Kennedy pointed out that both districts failed to provide evidence that the racial percentages were the only way to achieve their desired results, stating, “individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest.” Kennedy did not specify what point can be considered the “last resort

Things to keep in mind:

When adopting a student assignment plan that uses race as a factor, districts should:

  • First seriously consider, and where appropriate use, a race-neutral plan;
  • When rejecting a race-neutral plan, record in detail why this plan would not meet the district’s stated educational goals in maintaining diverse enrollments (districts that try race-neutral plans that do not yield the desired outcomes and later adopt race-conscious plans may have a stronger case that the use of race is necessary);3
  • Commission studies to inform decision making;
  • Engage the community.

c. Closely tie any use of racial percentages to educational goals, not district demographics alone.

Four justices disapproved of the Seattle and Jefferson County student assignment plans because they were tied to each school district’s racial demographics rather than “any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits.” For example, the Seattle plan sought to enroll between 31% and 51% white students, which is within 10% of the district’s white student average enrollment of 41%. Seattle admitted that the goal of its plan was to attain a level of diversity that approximated the district’s overall demographics. And, neither Seattle nor Jefferson County offered any evidence to support the argument that the level of racial diversity necessary to achieve the intended educational benefits coincided with the district’s racial demographics.

This suggests that when a district adopts a student assignment plan that uses race as a factor, it is important that the use of race be based on the level of diversity needed to achieve educational benefits and not simply to the district’s demographics. For example, if a district has 30% Asian American students, a plan that requires approximately 30% Asian American students to attend each school simply to match the racial distribution of the district-wide student body a court will likely view this as mere racial balancing, unless the district can demonstrate that the plan’s distribution of students by racial percentages is necessary to achieve the educational benefits it is seeking. District demographics might be one factor in shaping those educational goals.

The Court did not explain how a district determines what level of diversity would accomplish the desired educational benefits. Likewise, there is no explanation of what kind of proof is needed to satisfy a court that the particular level of diversity the district has chosen will produce the desired educational benefits. However, the Court does discuss favorably Grutter’s conclusion that seeking to admit an undefined “meaningful number” of minority students was permissible, where the school “did not count back from its applicant pool to arrive at the ‘meaningful number.’”

When determining target levels of diversity, districts should review social science research that has studied the levels of racial diversity necessary to produce improved student achievement or other educational benefits and apply that research in the context of their own local circumstances. Assignment plans informed by scholarly research rather than simply tied to the district’s racial makeup without connection to the asserted educational goals probably have a better chance of being found legally acceptable by a court.

Things to keep in mind:

  • Review social science research regarding the levels of racial diversity necessary to produce educational benefits;
  • Identify specific educational benefits to be gained by a diversity plan;
  • Articulate clearly why the level of diversity the district has chosen will produce the desired educational benefits; and
  • Ensure the use of race is limited in time and scope.

d. Clearly articulate how and when race is employed to assign students.

Justice Kennedy stated that the Jefferson County plan was not narrowly tailored because it failed to explain when and how race is used as a factor. For example, the district conceded that the plaintiff, a kindergartner, was denied his preferred assignment based on race. Yet, the district also maintained the racial guidelines did not apply to kindergartners. More specifically, Justice Kennedy stated Jefferson County’s plan was not narrowly tailored because it failed to make clear “who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of two similarly situated children will be subjected to a give race-based decision.” A plan that includes clear and detailed explanations of these questions will improve its chances of surviving a legal challenge. It is also important that a school district actually follow and apply these procedures when assigning students. It is noteworthy that Justice Kennedy lauds Seattle’s plan for better describing the methods and criteria used to determine assignments based on race.

Things to keep in mind:

The policy should:

  • Specify precisely when and how race is used to select between two similarly situated children.
  • Identify a decision-maker making the determination.
  • Identify oversight of the policy/decision-maker to ensure fairness and consistency.
  • State the precise circumstances in which an assignment decision will or will not be made on the basis of race.

e. Avoid blunt racial categories.

Justice Kennedy criticized Seattle’s plan because it only makes race-based decisions using “white” and “non-white” categories despite the fact that the district is composed of several races.4 So, for example, under the plan a school with 50% Asian American students and 50% white students would comply with the plan, but a school with 30% Asian American, 25% African American, 25 % Latino, and 20 % white student enrollment would not comply with the plan. According to Justice Kennedy, this feature of the plan threatened to defeat the plan’s purposes, and Seattle offered “no convincing explanation for its design.”

It is important to note that a majority of the Court criticized both the Seattle and Jefferson County plans for employing only a “limited notion of diversity” when explaining why Grutter’s holding of race as a compelling state interest in higher education does not apply in this case. When adopting a student assignment plan that uses race as a factor, Justice Kennedy’s approach suggests that the plan must take into account all the races present in the school district and should avoid crude racial classifications.

Things to keep in mind:

  • Include all the district’s racial groups in the student assignment plan.
  • Don’t categorize students in crude racial categories such as white or non-white.

4. Must a voluntary plan or policy that uses race as a factor to make individual determinations also include other considerations besides race?

Probably. A majority of the Court stated that Grutter’s holding that achieving the benefits of diversity is a compelling interest in higher education does not apply in these cases. In Grutter, the law school’s admission policy considered race along with a number of other factors, including living or traveling abroad, fluency in several languages, and overcoming hardships, to determine whether an individual applicant helped to create a diverse learning environment. However, in the Seattle and Jefferson County plans, race was not considered as part of a broader effort to achieve “exposure to widely diverse peoples, cultures, ideas, and viewpoints.” The plans did consider other factors, such as student preference, but the Court considered this insufficient because when race did come into play, it became “the factor.” Like the undergraduate plan struck down in Gratz, the plans in these cases were deemed to apply race in a “nonindividualized, mechanical” way. Kennedy’s agreement with this conclusion is not absolute. He leaves open the possibility that race could be a determining factor where the district makes some “extraordinary showing” or .where using race is a “necessity”—conditions that he did not feel either Seattle or Jefferson County had met.

Things to keep in mind:

  • It is legally safer to develop a multi-factor “diversity index” that might include race but that also takes into account a variety of other variables in making assignments such as:
    • Socioeconomic status
    • Geographic location
    • Sibling enrollment
    • English language learner status;
    • Bilingual status
    • Record of academic achievement
    • Special education status;
    • Gifted and talented status
    • Parental educational attainment
  • Avoid making race the determining factor in the plan’s application of the diversity index to individual students unless doing so is absolutely necessary.

5. Can school districts make voluntary race conscious decisions other than adopting student assignment plans that use race as a factor?

Yes. Justice Kennedy opined that if school boards are concerned that the racial composition of certain schools interferes with the goal of offering an equal education opportunity to all students, school districts are free to devise race-conscious measures that “address the problem in a general way and without treating each student” differently by race. More specifically, Justice Kennedy cited the specific, but not exhaustive, race conscious methods to achieve racial diversity that would presumably not be held to the strict scrutiny standard (see list below). The four dissenting Justices would likely agree that these measures are not subject to strict scrutiny, though, none of these measures were at issue in the case.

Things to remember:

  • School districts are free to devise race-conscious policies that do not take an individual student’s race into account.
  • Examples of permissible race-conscious devices:
    • Site selection of schools,
    • Drawing attendance lines with the demographics of neighborhoods in mind
    • Resource allocation
    • Student and faculty recruitment
    • Tracking enrollments, performance, and other statistics by race.

6. Are single race programs and curricula geared toward a particular ethnic/racial group permissible?

Some urban school districts have operated African-American/Black immersion programs or schools for close to two decades. Most of these programs are geared toward at-risk African-American males and use Afro-centric curricula to build self-esteem. Many legal and social science scholars believe that such programs and curricula are in keeping with Brown’s promise to lift the academic performance of minorities.5

These immersion programs have avoided equal protection challenges because they may not explicitly exclude enrollment by students of other races, and the programs draw students from neighborhoods where the population is predominately African-American with little, if any, demand for enrollment by other groups.6 The Supreme Court’s decision certainly leaves the door open for school districts to carry out similar practices involving the drawing of attendance zones without resorting to racial classification of individual students so that African-American students would constitute the overwhelming majority of the student body in a school.

But, to the extent a school program admits or excludes individual students solely on the basis of race, the practice would be impermissible under the majority opinion.7

Things to keep in mind:

  • School districts are free to draw attendance zones to achieve diversity goals, including serving particular populations, such as at-risk youths.
  • The programs should be open to all students who otherwise meet the established criteria regardless of race.
  • Race-based assignment or exclusion of individual students should be avoided.

7. Are the No Child Left Behind Act’s (NCLB) requirement that districts report the performance of racial subgroups and the imposition of consequences when any such subgroup fails to meet adequate yearly progress (AYP) standards valid?

The racial identification required for NCLB reporting is not the type of racial classification used in the student assignment plans that were struck down. Reporting data disaggregated by racial/ethnic subgroups is for the purpose of monitoring academic progress of schools and districts in ensuring that all students are achieving to established academic standards. Under NCLB, school districts are not required to make decisions about individual students based on racial/ethnic classifications, but the law’s imposition of consequences based on the failure of a particular racial subgroup to make AYP may raise a harder question since the consequences are triggered only as the result of the use of racial demarcations.

8. Can race be a factor in magnet school admissions that are not part of a mandatory desegregation plan? And, if so, how?

The Court’s decision applies equally to assignment of students to magnet schools and non-magnet schools that are not subject to a mandatory desegregation plan. As a programmatic matter, race, absent a showing of necessity, cannot be the sole, determinative factor regarding whether an individual student is assigned to a particular magnet school. (See Q4., above ). But, a district could use race as part of “a more nuanced, individual evaluation of a school’s needs and student characteristics.” As Justice Kennedy explains, this evaluation would be informed by Grutter which allows race to be used in a “holistic” approach in order to achieve a “critical mass” of students to support the goal of obtaining educational benefits from diverse student enrollment. From a practical standpoint such an approach may be more workable in particular magnet programs than as part of general student assignment or transfer plans. For instance, a high school magnet program might look at a student “holistically” by granting admission to a student whose race is underrepresented at the school in addition to considering other race-neutral characteristics like test scores, socio-economic status, academic interest, geographical location, and teacher recommendations. A school district could also maintain or increase diversity at a magnet school by using a variety of race neutral mechanisms not subject to strict scrutiny (see Q.5 above).

Things to keep in mind:

  • Absent a showing of necessity race cannot be the sole, determinative factor in assigning an individual student to a magnet school.
  • One potentially acceptable approach to magnet student assignments includes holistic consideration of students’ race along with other race-neutral characteristics such as:
    • Test scores
    • Socio-economic status
    • Academic interest
    • Geographic location
    • Teacher recommendations
    • Sibling attendance

9. What race-neutral alternatives have other districts used, and how have they implemented them?

While the most effective way of creating racial integration is likely using race as a factor in the school assignment process, some school districts have already begun using other race-neutral alternatives to achieve the educational benefits of diversity and avoid the harms of racial isolation. These include socio-economic status, magnet schools, lotteries, and multi-factor indexes. Most of the school districts seeking to create or maintain diverse student enrollments in their schools use a combination of strategies. Many also use parental choice as a key component of their plans. Below are five examples:

a. Socio-Economic Model: School District of La Crosse, Wisconsin

The School District of La Crosse was the first district to use economic status in student assignment plans. The integration plan started in the late 1970s with the district’s two high schools. At that time, the achievement gap between the two schools was large. When one of the schools became overcrowded, the superintendent changed the boundary line between the two schools so that the economic make up of the schools would be more equal. The plan did not receive wide public support at first, but since its inception has proven to be remarkably successful, with students in both high schools testing at the same level as the more affluent high school had previously.

In the early 1990s, the school district decided to expand its economic balancing to elementary schools. At this point, two new elementary schools were being built, necessitating the redrawing of boundary lines accompanied by busing. Using free lunch status, the district drew new boundaries with the goal that each school enroll a free lunch population of between 15% and 45%.

The elementary program has been a success on all fronts. According to Richard Kahlenberg’s recent profile,8 ten of the twelve elementary schools fell within the economic diversity range set by the district by 2006-2007. Also, achievement scores have continued to rise. There are a few criticisms including the use of busing and boundaries instead of school choice, a more politically popular option.

b. Hybrid Model-Choice, Lottery and SES: Charlotte Mecklenburg Public School District, North Carolina

Charlotte-Mecklenburg Public School District’s (NC) current plan9 uses parental choice, a lottery and socio-economic status in assigning students to schools. Each student is guaranteed a spot in his or her home school or the same school as a sibling. If a child chooses not to use these guarantees, a weighted lottery system commences. All students are randomly given a number and then placed in order of certain established priorities. First preference goes to students who perform below average in reading and who want to attend schools with above average reading scores. Only 25% of available seats at any one school are allowed to be given out based on this criteria; the superintendent can eliminate a school from the list of schools with above average reading if there is high student turnover or if more than 50% of the students receive free or reduced lunch. Next, students whose home schools are Title I Choice Schools have preference for non-Title I Choice Schools, and students who receive free and reduced lunch get the first available seats, although only 10% of available seats may be determined with this preference. Elementary or middle school students within the transportation zone of a school are next to be assigned, followed by elementary or middle school students outside of the transportation zone. High school students have priority to attend any school in the district except schools with International Baccalaureate programs.

Some suggest that this plan has met with limited success in achieving academic success and maintaining racial integration due to two major components. First, students are guaranteed attendance at their home school regardless of their socio-economic background. Second, free and reduced lunch students are only given consideration when seats are available after home school students and siblings have been placed.10

c. Attendance Zone Model: Wake County Public School System, North Carolina

Under the Wake County assignment plan,11 each student is assigned to an attendance area where their parent or legal guardian lives. The attendance zones, known as “nodes,” are drawn to achieve Wake County’s overall goals of limiting the number of students who receive free and reduced lunch at any one school to no more than 40% of enrollment and ensuring each grade in each school has an achievement level of no less than 25% below grade level. The plan also tries to minimize travel time and maximize the use of facilities.

Because demographics in residential areas often change, the Wake County plan also calls for reassignment when the goals are not being met. Reassignment factors include the opening of new schools, crowding at existing schools, year-round expansion/conversion of schools, school improvement/expansion, transportation, magnet transportation offering, and diversity, which includes socioeconomic determination through free and reduced lunch, growth trends and academic achievement measured by reading scores in grades three through eight.

By some measures, Wake County’s program has been successful in both raising academic achievement and creating racial diversity in the schools. Test scores for both low-income and middle class children have exceeded the state average. Additionally, the number of schools that remain integrated has only slightly decreased.12

d. Diversity Index Model: San Francisco Unified School District (SFUSD), California

SFUSD’s plan, “Excellence for All,”13 integrates school choice with a lottery system and a diversity index. Parents select five schools for their children and are encouraged to make three of the five alternative schools. Using these lists, the district conducts a weighted lottery to fill the available spaces. First priority goes to siblings of students already attending the chosen school. Next, students requiring special programs are placed in schools with programs to meet their needs. Then the Diversity Index, described below, is used to enroll students from the school’s attendance area. Once the students in the attendance area “cease to contribute to the diversity of the school,” the Diversity Index is employed for all remaining students.

The Diversity Index takes into account six factors of diversity simultaneously: socioeconomic status, academic achievement status, mother’s educational background, language status, ranking of previous school, and home language. The socioeconomic status is measured by whether the student participates in free and reduced lunch programs, CalWorks, or public housing. Academic achievement is based upon varying factors depending on the student’s grade level. Whether the student’s mother has post-high school experience determines the mother’s educational background. Language status is measured by whether the student is proficient in English. The ranking of the student’s previous school is determined by whether the previous school has an API ranking (ranking done of all California schools) of 4 or above. Lastly, home language is measured by whether the student’s home language is English.

Under this system, San Francisco has experienced some success in raising academic achievement, but there have been complaints that it has not produced enough racial integration. According to a July 2007 New York Times article, schools are re-segregrating under this plan.14 According to Kahlenberg, the problem with the policy is that the Diversity Index only matters when a school is oversubscribed, and there is no overall cap on low-income students in a given school.

e. Controlled Choice Model: Cambridge Public School District, Massachusetts

Cambridge Public School District’s “Controlled Choice” plan15 also allows parents to rank three schools they want their students to attend. The current goal of the school district is that each grade in each school is within a range of plus or minus fifteen percentage points of the district-wide percentage of students who are eligible for free and reduced lunch. Taking into account parental choices, a computer than assigns students in the following order: bilingual and special education students with school-specific education programs are assigned first; next, children with siblings in their preferred school or children who request to be placed in one of the two schools closest to their residence are placed as long as doing so does not affect the school’s ability to meet the target range for free and reduced lunch enrollment. If the remaining applicant pool is within the established diversity range, then students will be assigned randomly. If the applicant pool is not within the socioeconomic status range, then additional weight is given to race or ethnicity, special education status, English Language Learner status, and gender.

Some believe it is still too early to tell if the plan has improved academic achievement because it has been instituted one grade level at a time and has only been in effect since the 2002-03 school year. Nevertheless, early signs show it has been a success on that front, but using socioeconomic status as the primary determinant has sustained racial diversity in some schools, but not in others.

10. Can school districts that have not reached unitary status and are under current court-ordered desegregation plans continue to classify individual students by race for purposes of school assignment?

Yes. Justice Kennedy’s concurrence makes it clear that the rule of this case does not apply directly to school districts under court order to integrate. Thus, school districts under court order to remedy prior de jure segregation may continue to “classify individual students based on their race, under the aegis of the Supreme Court’s 1971 decision in North Carolina Bd. of Educ. v. Swann.

11. Can school districts that have reached unitary status and are released from any court supervision, including settlement agreements, continue to classify individual students by race for purposes of school assignment?

School districts that have reached unitary status are in the same legal position as schools that were never subject to mandatory desegregation plans.

These school districts can use race-conscious policies aimed at achieving the educational benefits of diversity, but they cannot, in general, make decisions based on an individual student’s race alone. (See Q. 4 above.)

12. Does the Court’s decision apply to districts that have reached unitary status, but are still under a court-supervised plan such as a settlement agreement?

Perhaps. The ultimate determiner will be the terms of the settlement agreement or the court supervision plan itself. For instance, where a plan provides that a school district is under court supervision, but has not yet reached unitary status, the school district will be better placed to argue its individual student racial classifications are valid. However, where the court has declared that a school district has reached or has substantially achieved unitary status, the district’s ability to justify the individual classifications is lessened absent a showing of some extraordinary necessity. The district might also be able to argue that the court’s supervision is part of the continuing remedial integration effort.

13. What about districts that have 441B voluntary plans entered into with U.S. Department of Education’s Office for Civil Rights (OCR)?

The Supreme Court did not address this scenario in its ruling. As of this writing, OCR reportedly still is evaluating for itself how the Supreme Court’s decision will affect its efforts and the past agreements it has entered into with school districts. For now it seems prudent for a school district to continue to comply with the plan pending further guidance from OCR but to begin the process now of evaluating its options in anticipation that the plan may need to be revised in light of the Court’s ruling.

14. Can a school district draw attendance zones to promote diversity and reduce racial imbalance?

The Kennedy concurrence states school boards may develop “attendance zones with general recognition of the demographics of neighborhoods” with the intent of “bringing together students of diverse backgrounds and races without being subject to the legal standard of review applicable to race based classifications. Justice Kennedy relied on electoral redistricting cases to conclude that attendance zones boundary lines are “facially race neutral.” And, Kennedy reasoned, even where the drawing of attendance zones is race conscious, it may be permissible, because it does not “lead to different treatment based on a classification that tells each student he or she is to be defined by race.” The four dissenting Justices would likely agree that these measures are not subject to strict scrutiny, though, none of these measures were at issue in the case. For this reason, the drawing of attendance zones may be among the strongest of weapons remaining in the diversity arsenal. That said, litigation testing this question is a real possibility. For example, as of this writing a parent in Milton, Massachusetts, reportedly is considering mounting a legal challenge to the Milton School Committee’s school attendance boundaries, which he alleges were drawn with diversity in mind.16 The school district denies this, saying its map was drawn to equalize class sizes.

15. Is litigation inevitable if a school district already has or later adopts a race conscious plan?

An important threshold question is whether the plan has been adopted pursuant to a court desegregation order. The Supreme Court took pains to distinguish both Seattle and Louisville from districts that still were operating under mandatory desegregation plans. Even some of the litigation groups that bring legal challenges to race-conscious plans have been careful to make this distinction.

These same groups, however, have indicated a strong interest in using the Court’s ruling to bring challenges to other existing race-conscious plans. The attention the Court’s decision has brought to this issue probably makes it more likely that a parent dissatisfied with an assignment decision will seek to challenge it.

The risk of litigation and of a legal defeat for the district is greatest if:

  • The plan makes race-based determinations on a individualized basis;
  • The district is unable to explain persuasively the connection between the race-conscious means used and the compelling ends sought;
  • The district cannot demonstrate that it tried or seriously considered race-neutral alternative; or
  • The use of race in the plan is so minimal it suggests that other methods might be effective.

16. Won’t race-neutral alternatives like socio-economic status (SES) just be challenged as proxies for race?

As a practical matter, many of the advocacy groups opposing race-conscious efforts in fact argued strenuously that school districts could base their efforts on SES, although at least one such group has expressed the view that pursuing diversity through SES means would be impermissible. While this reduces the odds of litigation arising from such groups’ efforts, one parent dissatisfied with an assignment decision can bring a legal challenge with or without their assistance.

In fact, the use of SES in Wake County, North Carolina was challenged in 2003 as an impermissible proxy for race. The U.S. Department of Education’s Office for Civil Rights (OCR) issued a letter rejecting this argument The following year, a report by OCR touted Wake County’s plan as an acceptable race-neutral approach.17 While the courts have not provided much guidance on this question, at a minimum a district would be on surer legal ground to ensure that there is not an overwhelming correlation between the assignments resulting from such a plan and what the assignments would be were race the consideration rather than economic status.

17. Does the decision apply to cases that have not reached a final appeals decision? Is it retroactive?

Cases that were still pending when the Supreme Court issued its ruling presumably will be decided in light of the ruling. It seems likely that courts will request the parties to such cases to submit additional arguments taking the decision into consideration.

18. Does the decision impact the question of whether teachers can be assigned to schools based on the teacher’s race/ethnicity?

No. This decision does not alter a 1986 U.S. Supreme Court 1986 case18 that said that neither societal discrimination nor the policy objective of providing role models alone justifies a school district making employment decisions based on race. It is safe to say that in school districts that are not under mandatory desegregation orders, race-based teacher assignments are subject to strict scrutiny and must be justify by showing a compelling governmental interest that is narrowly tailored.19 Court-ordered desegregation plans that require teachers to be assigned on the basis of race/ethnicity are not affected by the Supreme Court’s recent decision.

EndNotes

* Contributing authors include Francisco Negrón, Naomi Gittins, Tom Hutton, Lisa Soronen, Cullen Casey and Tom Burns.

1. Antoinette Konz, Student-assignment guide OK'd , Courier-Journal, July 24, 2007, available at, http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20070724/NEWS01/707240424.

2. Interestingly, in declaring that the minimal use of race in these cases “casts doubt on the necessity of using racial classifications,” the Court also opined that a greater use of race would not be preferable.

3. The dissent’s meticulous history of each school district’s pursuit of racial integration provides valuable context that suggests in order to pass constitutional muster, a district must go above and beyond the Seattle and Louisville boards’ actions before adopting race-conscious policies: reviewing, but not implementing, race-neutral policies; examining studies; and gauging community support.

4. The use of black/white lists was also rejected in the Kentucky case by the federal district court and the circuit court of appeals. McFarland v. Jefferson County Pub. Schs ., 330 F. Supp. 2d 834 (W.D. Ky. 2004), aff’d, 416 F.3d 513 (6th Cir. 2005).

5. See Sonia R. Javis, Brown and the Afrocentic Curricululm, 101 Yale L.J. 1285 (1992); Harvard Law Review Association, Inner-City Singe-Sex Schools: Educational Reform or Invidious Discrimination, 105 Harv. L. Rev. 1741 (1992); Christopher Steskal, Creating Space for Racial Difference: The Case for African American Schools, 27 Harv. C.R.-C.L. L.Rev. 187 (1992); Helaine Greenfield, Some Constitutional Problems with the Resegregation of Public Schools, 80 Geo. L.J. 262 (1991); John A. Powell, Black Immersion Schools, 21 NYURLSC 669 (1995).

6. As a result, legal claims against these programs have asserted gender, not race, discrimination.

7. Prior to the Seattle and Kentucky cases, the Office for Civil Rights of the U.S. Department of Education stated that single race programs violate Title VI of the Civil Rights Act of 1964. Letter from Jesse L. High, Office for Civil Rights, U.S. Department of Education, to Dr. Joseph A. Fernandez, Superintendent, Dade County Public Schools (Aug. 31, 1988).

8. Richard d. Kahlenberg, Rescuing Brown v. Board of Education: Profiles of Twelve School Districts Pursuing Socioeconomic School Integration (Century Foundation , New York, NY) June 2007, available at http://www.tcf.org/publications/education/districtprofiles.pdf.

9. Charlotte-Mecklenburg Schools, Student Assignment Plan Priorities-Non Magnet Sites (Oct. 25, 2005), available at http://www.cms.k12.nc.us/studentAssignment06-07/plan/JCA-E1.pdf (last visited July 25, 2007).

10. Kahlenberg, supra, n. 8.

11. Wake County Public School System, Student Assignment Process, http://www.wcpss.net/growth-management/student-assign-process.html (last visited July 25, 2007).

12. Kahlenberg, supra, n. 8.

13. San Francisco Unified Sch. Dist., Excellence for All: Five-Year Comprehensive Plan to Achieve Educational Equality in the San Francisco Unified School District (Revised Jan. 24, 2002), available at http://www.sfusd.edu/news/pdf/X4Allrev021302.pdf (last visited June 25, 2007).

14. Jonathan D. Glater & Alan Finder, School Diversity Based on Income Segregates Some, New York Times, July 15, 2007, at A24, available at http://select.nytimes.com/gst/abstract.html?res=F10C1FF6345A0C768DDDAE0894DF404482.

15. Cambridge Public School District, Controlled Choice Plan (Dec. 18, 2001), available at http://www.cpsd.us/Web/PubInfo/ControlledChoice.pdf (last visited July 25, 2007).

16. Ken Macquire, Mass. schools with desegregation plans not rushing to change, Boston Globe, Aug. 28, 2007.

17. Office for Civil Rights, U.S. Dep’t of Educ., Achieving Diversity: Race-Neutral Alternatives In American Education (2004).

18. Wygant v. Jackson Bd. of Educ. 476 U.S. 267 (1986).

19. Los Angeles Unified School District (LAUSD) is currently facing suit in state court by a white teacher who was reassigned, even though he had seniority over several minorities, because of the district’s “Teacher Integration Transfer Plan. Although the basis of the suit is California’s Prop 209, it involves the same underlying equal protection issues. (For information on teacher suit see: http://www.pacificlegal.org/?mvcTask=topic&id=3&category=17&project=&case=698)


 
 
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