Louisville lawyer Teddy Gordon takes School integration back before Supreme Court

Bob Egelko,   San Francisco Chronicle
More than 50 years after the U.S. Supreme Court outlawed racial segregation in public schools, the justices are about to consider whether a school district can voluntarily integrate by considering race in campus assignments.

In cases from Seattle and Louisville, Ky., to be argued Monday, the justices will address the question left unanswered by the Brown vs. Board of Education ruling in 1954: What can the government do when the last vestiges of state-sponsored segregation are erased and schools nevertheless remain racially isolated because of housing patterns, parental choice and perhaps societal discrimination?

Facing that situation, officials in Seattle installed a system that allowed race to be considered as one of several factors in determining enrollment in popular high schools. In Jefferson County, Ky., which includes Louisville, the school district was once under a court desegregation order, and officials tried to avoid resegregating by setting minimum minority and white populations at each school.

“Jefferson County housing is substantially segregated along racial lines,” attorney Frances Mellen said in a brief to the court. “The assignment of all (district) students to ‘neighborhood schools’ would result in a substantial number of racially segregated schools.”

After the court desegregation order was lifted in 2000, Mellen said, the 97,000-student district concluded the only way it could prevent resegregation was to seek African American enrollment of 15 to 50 percent at each school. The proportion of blacks in the district was 36 percent.

The student assignment process, she wrote, “is flexible and uses race in a limited and permissible manner.”

But Teddy Gordon (from Louisville, Ky.), the attorney  for a white woman whose 5-year-old son was assigned to a more distant Louisville school rather than his neighborhood school, said the district’s program was “nothing more than a hard-core, mechanized quota.”

The Bush administration agrees. In papers filed with the court, Solicitor General Paul Clement outlined the administration’s position: A district can assign students by race when necessary to make up for its own intentional discrimination, but not to integrate schools that were never deliberately segregated.

Allowing “the use of a racial classification to achieve a desired racial balance … would remove the critical requirement that individuals be considered as individuals,” Clement said. Such a program, he said, is just as unconstitutional as the segregated school systems that the Supreme Court struck down in 1954.

The administration is supporting white parents challenging both the Louisville and Seattle programs. The Seattle plan — suspended since 2002, when it came under legal attack — gave officials in the city’s 46,000-student high school district a list of factors to consider when a school had more applicants than space. Second on the list, after the presence of a brother or sister at the school, was whether the student’s race would move the school closer to the district population of 40 percent white and 60 percent nonwhite.

A UC Berkeley law professor who supports school districts’ right to consider race in enrollment described the cases as the final chapter of Brown vs. Board of Education.

In the last few decades, “the court has basically ended the business of judicially enforced racial integration,” said Goodwin Liu, who filed arguments in the case on behalf of 19 former University of California campus chancellors. “Now the only question is whether school districts on their own accord can integrate. If not, it’s fair to say that from the constitutional law standpoint, we’ve given up on racial integration of public schools.”

A report by the Civil Rights Project at Harvard University illustrated the persistence of racial separation in public schools, despite the long-standing ban on intentional segregation.

In 2003, the project said, whites made up 58 percent of the nation’s public school enrollment, but the average white student attended a school that was nearly 80 percent white. African Americans accounted for 17 percent of all students, but the average black student attended a school that was 53 percent black. Latinos made up 19 percent of total enrollment, but attended schools that typically were 55 percent Latino.

But another report, by the U.S. Commission on Civil Rights, questioned whether integrated schools were better for students.

Social science studies provide “little evidence that racial and ethnic diversity in elementary and secondary schools results in significant improvements in academic performance,” the commission, controlled by appointees of President Bush, said last week.

T he case also arises at a time of uncertainty about the constitutional status of race in government programs.

Three years ago, after a series of decisions condemning preferential programs for minorities and women, the Supreme Court was widely expected to forbid the use of race as a factor in admission to public universities.

Instead, over the opposition of the Bush administration, the court left the door open a crack. In a 5-4 decision, the justices said an applicant’s race was one of several criteria a public university could consider in the interest of promoting a diverse student body.

The outcome may be different this time. The author of the 2003 ruling, now-retired Justice Sandra Day O’Connor, has been replaced by Justice Samuel Alito, a reliable member of the conservative bloc since his appointment by President Bush in January. In a 1985 application for a promotion in President Ronald Reagan’s Justice Department, Alito said he was particularly proud of his work against “racial and ethnic quotas.”

The Supreme Court’s agreement to review the Seattle and Louisville cases, after lower courts upheld the districts’ integration plans, was a likely signal that Chief Justice John Roberts and his colleagues are preparing to ban racial considerations in public school enrollment, said Pepperdine University law Professor Douglas Kmiec, a Justice Department official under Reagan and President George H.W. Bush.

“Racial balancing is patently unconstitutional, and the Roberts court should — and will likely — say so,” Kmiec said.

He also said the court probably would leave intact its 2003 decision on college admissions. The Bush administration argues that the school district programs are closer to racial quotas than the university program the court upheld and lack the justification for racial diversity that the court found in higher education.

“In the second grade, you’re learning the multiplication tables, not discussing the effects of slavery in the 20th century,” said Pacific Legal Foundation attorney Paul Beard, who filed arguments opposing the Louisville program. “The court recognizes a special niche in the First Amendment for universities and colleges to determine their own educational mission.”

Supporters of the school districts disagree. “The historic purpose of the public schools is to provide common ground for people in all walks of life,” said Berkeley’s Liu.

Some analysts say it is possible that Justice Anthony Kennedy, who voted with the dissenters in 2003 to strike down race-conscious admissions at the University of Michigan Law School, will switch sides and provide the decisive vote for the school district plans.

“I think Kennedy is an idealist about American society and the issue of race,” said attorney Edward Lazarus, a former Supreme Court clerk and author of a book on the court. Lazarus, who supports racial considerations in enrollment but is not involved in the cases, noted that while Kennedy has been critical of affirmative action, he has never ruled it out altogether.

The ruling, due by the end of June, will have a broad impact, though the exact contours of the case are difficult to measure.

The government has no official figures for the number of school districts with voluntary integration programs. Sharon Browne, a Pacific Legal Foundation lawyer who filed arguments supporting a group of white parents in Seattle, said two conservative scholars estimated in a recent study that nearly 1,000 districts nationwide have some type of race-based enrollment policy.

It’s also unclear whether the ruling will affect California. The prevailing view among attorneys and academics is that racial considerations in school admissions are prohibited by Proposition 209, the 1996 initiative that outlawed racial preferences in state and local government programs, regardless of what the Supreme Court finds constitutionally permissible nationwide.

“Even if the case goes the other way, it won’t have any effect on California or Michigan,” where voters adopted a measure identical to Prop. 209 last month, said Paul Beard, another Pacific Legal Foundation lawyer.

Although the state Supreme Court has not yet ruled on Prop. 209′s application to education, he said, an appeals court made it clear that the measure banned “(student) assignments on the basis of race.”

The foundation has sued to challenge race-based programs in Los Angeles and Berkeley and is poised to sue San Francisco if the school board tries to reintroduce race as a factor in admissions. Since a court-approved settlement in 2001 ended the use of race for desegregation in San Francisco, single-race enrollment at some schools has risen above 80 percent.

Liu said, however, that a Supreme Court ruling upholding school district integration programs might convince California courts that race-based student assignments are not “preferences” forbidden by Prop 209. He said enrollment at public schools, where attendance is mandatory, could be viewed differently than decisions on hiring, contracting or admission to selective universities, where there are clear winners and losers.

That was the view of Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals in San Francisco in an October 2005 opinion that has been widely cited by supporters of the school districts — in part because Kozinski is a Reagan appointee who once clerked for Kennedy.

In an enrollment plan intended to preserve racial diversity, “there is no competition between the races, and no race is given a preference over another,” Kozinski said in a ruling upholding the Seattle program. “That a student is denied the school of his choice may be disappointing, but it carries no racial stigma.”

Not so, said Harry Korrell, lawyer for the white parents challenging the Seattle program.

“Racial balancing prefers one individual to another for no reason other than race,” he said in a Supreme Court brief, “and thereby violates the heart of the equal protection clause — the principle that our Constitution is color-blind.”


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