Considering Fairness in Affirmative Action in Schools

Dec. 1, 2006 — -- When Crystal Meredith moved to Louisville, Ky., and tried to enroll her 5-year-old son in kindergarten a couple blocks from their house, officials pointed her elsewhere, to a school that was a 90-minute bus ride away.

A school that was closer to their home, officials told her, couldn't accept another white student like Joshua that year.

Meredith, a single mother, wasn't looking for a fight. After driving Joshua across town to school every day, she decided she'd bypassed the closer school long enough.

She sued and is now at the center of the most significant legal battle over race to reach the Supreme Court in years.

"Joshua was denied entrance to a school for no other reason than racial classification," said Teddy Gordon, Meredith's attorney. "There was room at the school. There were plenty of empty seats. This was a racial quota."

Meredith and other parents who sued the Louisville school district argue that the racial assignment plans amount to unconstitutional race discrimination.

The school district contends that it's not discriminating against anyone, but instead is trying to maintain racially balanced and integrated schools for the benefit of all.

The justices will hear arguments in the case on Monday, as well as in a similar case from Seattle.

The cases are the first major battle over race for the newly constituted Supreme Court, led by Chief Justice John Roberts, and they could set important guidelines for the use of racial preferences in the future.

Civil rights advocates say nothing less than integrated public education is at stake.

They say a ruling against the school districts would undermine the promise of Brown vs. Board of Education, the landmark 1954 decision that outlawed separate systems of education for black and white schoolchildren.

"The question before the Supreme Court now is whether it will be illegal or unconstitutional to voluntarily maintain school desegregation, school integration, in the 21st century," said Ted Shaw, president of the NAACP Legal Defense and Educational Fund. "It is an easy question. It is what is left of Brown vs. Board of Education."

But opponents say they are only demanding that all children should be treated the same, just as Brown vs. Board of Education demanded.

"It's whether or not, across the United States, we should continue to use race to categorize and classify kids within student assignment plans as to where they attend public schools," Gordon said.

The Louisville school district adopted its plan in 2001, and it requires schools to seek a black student enrollment of at least 15 percent and no more than 50 percent.

Those guidelines apply primarily at the elementary school level and in admissions to special programs, such as magnet schools.

The case from Seattle raises similar legal issues to the one from Louisville, though it involves the city's public high schools.

Under its plan, students can choose to attend any of the city's 10, four-year high schools unless they are "oversubscribed" with more students than the school can accommodate.

In that case, the school district looks at several factors when assigning students, including whether their race would contribute to a "racial imbalance" in the school.

A group of parents challenged the school district's assignment plan after their children were not assigned to the high schools of their choice.

The Bush administration has sided with the parents in both cases, arguing that race-based assignment plans violate the Constitution's Equal Protection Clause.

In court papers, Justice Department lawyers say the assignment plans involve "outright racial balancing," which is "patently unconstitutional."

They argue that the plans are akin to quotas and are therefore illegal after two 2003 Supreme Court affirmative action decisions.

The Justice Department also refers to Brown vs. Board of Education in its legal papers, arguing that the landmark case prohibits schools from "intentionally classifying students on the basis of race."

The parents in both cases lost in the lower courts.

The San Francisco-based federal appeals court ruled last year that the Seattle plan was a legitimate way of "securing the educational and social benefits of racial (and ethnic) diversity, and in ameliorating racial isolation."

But the issue deeply divided the appeals court judges and produced several impassioned decisions.

Conservative Judge Alex Kozinski wrote a separate opinion defending the assignment plan, which he said "gives the American melting pot a healthy stir without benefiting or burdening any particular group."

But Judge Carlos Bea and three others dissented, arguing the district was "engaged in simple racial balancing."

"Up to now, the American 'melting pot' has been made up of people voluntarily coming to this country from different lands, putting aside their differences and embracing our common values," wrote Bea, who is Hispanic. "To date, it has not meant people are told whether they are white or non-white, and where to go to school based on their race."

But a majority of the California-based appellate court judges said the plans were permissible based on principles in the Supreme Court's 2003 affirmative action decisions. Those decisions were the justices' most recent pronouncements on race.

The Cincinnati-based federal appeals court approached the issue differently: Its unsigned opinion was just three paragraphs long and endorsed the reasoning of the trial judge who upheld the Louisville plan.

The judge had also focused on the Supreme Court's 2003 decisions in ruling that the Louisville plan was constitutional.

In those decisions three years ago, the Supreme Court narrowly upheld race-conscious admissions policies at the University of Michigan Law School, so long as a student's race was one of many factors considered in admissions.

The court said the university's interest in maintaining diversity was compelling enough to justify taking race into account. The court then rejected an admissions plan at the undergraduate level because it was too rigid.

But the decision upholding affirmative action at the law school was 5-4, with Justice Sandra Day O'Connor casting the deciding vote.

With the more conservative Justice Sam Alito taking O'Connor's place earlier this year, the court may now be poised to put greater limits on the consideration of race.

Civil rights leaders say the cases will signal whether the court will be more hostile to affirmative action and other racial classifications designed to remedy racial inequities.

"We are at a crucial point. There is a new Supreme Court," Shaw said. "My hope is -- and it is only a hope -- that even though we have undoubtedly as conservative a court … than we have seen in the last 40 or 50 years, that the court still sees the significance of the promise of Brown."