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A diversity decision

Two cases before the U.S. Supreme Court this term will give an indication of how far schools can go to promote desegregation.

By Times editorial
Published June 12, 2006

The U.S. Supreme Court's decision to take up two cases involving school integration next term could bring some important clarity to how far districts can go to promote racial diversity. School districts across the country that are no longer under rigid federal court orders, including Pinellas, could use some clearer direction. But in providing that clarity, the court would turn legal precedent and public education upside down if it forbade schools from any consideration of race.

The strategies that school districts use, and the burdens they create on students of all races, are worthy of the court's examination. But some interest groups are asking the court to consider these modern and more sophisticated attempts to maintain racial diversity as the legal equivalent of the racial bigotry rejected by the courts more than a half-century ago.

That argument has been recently rejected by the Supreme Court in a case involving higher education. Just three years ago, in a 5-4 decision, the court approved a narrowly drawn affirmative action plan for admissions to the University of Michigan law school. Some plans can go too far, it said, but racial diversity itself is a "compelling interest" of society. "Not every decision influenced by race," it wrote, "is equally objectionable."

It would seem reasonable to expect that same approach to extend to the public schools. The question now is whether a different court with two new Bush appointees, Chief Justice John G. Roberts and Samuel Alito, is inclined to disagree.

In Seattle and Louisville, elected school boards have moved the racial debate beyond court-enforced desegregation and into a new era. In Seattle, race is used as one "tiebreaker" in deciding which students get into which high schools. In Louisville, which was under a desegregation court order for 25 years, broad racial ratios of the student population at each school have been established.

In recent years, federal courts have been lifting long-standing desegregation orders. That has left many school districts, including Pinellas and Hillsborough, in a legal quandary. After decades of extraordinary efforts to bus children to achieve racial balances, should they abandon any attempt at diversity in the future? Would it be illegal to consider race even in the context of voluntary magnet schools or in allowing a black student to choose to attend a predominantly white school?

The implications of the Supreme Court's ruling are enormous. In Pinellas, a task force is looking at how to overhaul a highly unpopular choice assignment plan with unsustainable busing costs and maintain some racial diversity in schools. It is scheduled to make recommendations in early 2007, shortly before the court is expected to rule.

At the high court, the past writings of the two new justices have been well-chronicled. Roberts, while an attorney in the Reagan administration, called desegregation "a failed experiment." Alito wrote in 1985 that he was "particularly proud" of the administration's efforts then to fight "racial and ethnic quotas." Those writings, though, may not presage their ruling.

To overturn the cases, the court would have to either declare that schools in general have no business promoting racial diversity or that the Seattle and Louisville strategies go too far. A broad declaration would reverse decades of jurisprudence and interfere in the right of elected school boards to assign students to their respective schools. A narrower rejection might be plausible in the case of Louisville, but the Seattle plan is modest enough that a Reagan judicial appointee deemed it "eminently sensible."

"It is difficult to deny the importance of teaching children, during their formative years, how to deal respectfully and collegially with peers of different races," 9th Circuit Court of Appeals Judge Alex Kozinski wrote in his concurring opinion. "Whether one would call this a compelling interest or merely a highly rational one strikes me as little more than semantics. ...

"Not only does a plan that promotes the mixing of races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials."

Kozinski is a judicial conservative whose views on local control should resonate with the Roberts court. The court's decision to take up these two integration cases is a welcome one, and its opinions could provide the definitive road maps for assigning students to public schools. Hopefully, those maps will offer guidance for ways to consider race to keep schools diverse, not roadblocks that result in resegregation.

[Last modified June 12, 2006, 05:29:17]