New Justices May Vote to Limit Affirmative Action

Late last year, in the midst of a combative nomination process to find her successor, Justice Sandra Day O'Connor and her colleagues voted to reject an appeal in a case about whether public school districts could use diversity plans. Fast forward several months, and now Samuel Alito has joined a Court that has agreed to hear such a case and may be poised to follow through on one of the most important components of President Bush's conservative agenda: the eradication of affirmative action.

The Supreme Court today said it would hear two related cases, Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education, involving when school districts can use race in determining which public school a child is assigned to.

The Court last addressed an affirmative action case three years ago, Grutter v. Bollinger, when it struck down the University of Michigan's undergraduate admissions program that relied heavily on a point system but upheld the law school's admission policy that considered race, though to a lesser degree. The cases the Court had agreed to hear today are novel, as the justices have never ruled on the issue of the constitutionality of diversity plans in the K-12 context.

The use of race in student assignments has been the subject of great controversy. In Seattle, lower courts have upheld the district's use of race for admission to certain public schools. In Louisville, parents are challenging the district's formula to maintain diversity after the expiration of a court-mandated desegregation plan.

Sandra Day O'Connor was the swing vote in 2003 that declared constitutional the University of Michigan law school's program that considered race in admissions. But with the additions of Chief Justice John Roberts and Associate Justice Samuel Alito, the use of race in public school admissions may be in serious jeopardy.

Roberts, before his elevation, took positions for and against affirmative action as a deputy solicitor general in Republican administrations. He has a negligible judicial track record on this hot-button issue, because he served only a short time as a federal appellate judge. Alito has a more substantial record, stating for example in a 1985 job application for a position in the Reagan administration that he was proud of his contributions to the government's anti-affirmative action stance. During his confirmation hearing, it was disclosed that he was a member of a Princeton alumni organization that opposed the consideration of race and gender in school admissions.

The Seattle and Louisville cases will be argued in the fall, and their significance cannot be understated. The Court may be deciding the constitutionality of affirmative action in the public school arena, which will affect the use of diversity programs in business and private sector.