Justices Reject Race as Factor in School Placement

The Supreme Court ruled 5-4 decision that race could not be used to assign students to public schools. We hear from legal analyst Dahlia Lithwick of the online magazine Slate, and two parents in the school districts affected by the decision.

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MADELEINE BRAND, host:

From the studios of NPR West, this is DAY TO DAY. I'm Madeleine Brand.

Today was the last day of the Supreme Court term and the court finished with a bang - an important decision on school desegregation.

ANTHONY BROOKS, host:

I'm Anthony Brooks.

The court rejected school diversity plans in Seattle and Louisville, Kentucky. In a few minutes, we'll talk to parents in each of those school systems.

BRAND: First, though, Dahlia Lithwick is here now. She's the legal analyst for Slate.com and a regular here on DAY TO DAY. Dahlia, another 5-4 decision. Walk us through the case and how the ruling came down, please.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate.com): Sure, Madeleine. This was a pair of appeals. One came out of Seattle, Washington. The other was from Louisville, Kentucky. And they both had to do with systems that used race as a factor in trying to sort of integrate these schools that were sort of de facto segregated.

The Seattle plan would use race as a, quote, "tie-breaker" to try to keep the Seattle high schools close to the district's racial makeup. The Louisville plan was not for high schools; it was for elementary schools, public schools. And it also used race as a factor, again, to try to keep the schools roughly corresponding to the racial makeup of the district.

The court today struck down both plans even though they had been upheld by the lower courts of appeals.

BRAND: And Dahlia, does this then invalidate the 53-year-old, I believe, 53-year-old decision, Brown vs. Board of Education?

Ms. LITHWICK: Well, I don't know if it invalidates it, Madeleine, but it certainly turns it on its head. Both the majority opinion and the key dissenting opinions really sort of tethered themselves to Brown. And in the majority opinion, Chief Justice John Roberts, writing for the five more conservative members of the court, says this is strictly faithful to the spirit of Brown. And he says, quote, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In other words, this is the sort of colorblind principle that Brown stood for.

In his dissent, Justice John Paul Stevens literally said it was, quote, "a cruel irony to claim that this was faithful to the spirit of Brown." It meant rewriting in the most profound way one of the court's most seminal precedents. So I suppose it really turns on the question of what you think Brown stood for. The dissenters felt so strongly that Brown stood for the idea that we had to get America to be reintegrated, and I think the majority felt very strongly for the principle that Brown meant colorblind is colorblind.

BRAND: And what would be the practical impact starting tomorrow, I guess, on schools in Seattle and Louisville and the hundreds of districts across the country that are operating under desegregation plans?

Ms. LITHWICK: That's awfully hard to know right now, Madeleine. There's a 185-page opinion to wade through, and, trust me, lawyers are doing that. But Justice Breyer in his dissenting opinion cites the hundreds of school districts around the country that have literally hundreds and hundreds of plans that involve bussing, that involve all sorts of race-conscious, voluntary measures to reintegrate the schools.

So I think for the short term there's just going to be a lot of lawyers thinking very hard about what this means for them and, as Breyer says, an awful lot of litigation of what used to be settled law.

BRAND: That's Dahlia Lithwick of Slate.com. Dahlia, don't go away. Stick around. We'll come back to you a little later in the program to wrap up the term.

BROOKS: We're going to hear now from two parents who've had a lot riding on these two cases. First, to Kathleen Brose in Seattle, who won her suit before the Supreme Court today. She's white and was among several parents who sued the Seattle School District in 2000. She argued that the district violated state and federal laws when it considered the race of her 14-year-old daughter and denied her a place in three different schools, including the one closest to her home.

Ms. KATHLEEN BROSE (President, Parents Involved in Community Schools): She was separated from her friends. Many of her friends ended up going to private schools. She went to a school that was 30 minutes away from our home by driving by personal car or about 40 minutes from a school bus; or if she wanted to do after-school activities, it would take up to two hours to get home on to or three public buses.

BROOKS: And so, when she didn't get in to the school that she wanted to on account of her race, where did she go to school? What happened to her?

Ms. BROSE: She was assigned to her fourth choice, which was clear across the city, it was called Franklin - it is called Franklin High School. And she decided not to go there because we naively thought there was an orchestra at the school. My daughter played the cello at the time. And there's no orchestra there, and that was very important to her.

You know, and this is on of our arguments with the school district, is that they didn't look at the student's academic needs. And every high school has a different curriculum, but they didn't look at her academic needs. They just looked at her skin color and said we're going to place you over here because we need you over here.

There's a certain amount of diversity in our neighborhood and the kids that were categorized non-white were able to get into the local schools, and the kids who were categorized white weren't able to. And those kids knew that. It affected friendships. Once I filed the lawsuit, I had some people unhappy with me and it affected some of my friendships. You know, talking about race makes people uncomfortable.

BROOKS: Well, Kathleen, let me ask you about that, about race. What of the argument that this policy was designed to ensure diversity in the schools? What did you say to folks who would raise that argument with you?

Ms. BROSE: Well, we have diversity in our schools, and we have people from all over the world living here.

BROOKS: So your argument is that Seattle schools are integrated enough?

Ms. BROSE: They are integrated enough, and you know what, they are becoming more integrated all the time.

BROOKS: I'm wondering, your daughter is 22 now, I'm wondering, have you had a chance to talk to her about today's decision by the Supreme Court?

Ms. BROSE: No, she's still sleeping. It is early in Seattle right now.

BROOKS: Can you tell us what you expect her to say? What her reaction would be?

Ms. BROSE: Well, she's gone on with her life. I mean, she'll be glad that we won and, you know, she wouldn't want another student to go through what she did. There's enough angst in a teenager's life. They should be able to go to a school that's reasonably close to their home, and they should be able to with their friends, and, you know, they should be able to easily be involved in after-school activities, and that's the way schools used to be.

BROOKS: All right, Kathleen Brose. Thanks for talking to us today.

Ms. BROSE: Okay, thanks.

BROOKS: I appreciate it. That was Kathleen Brose, a Seattle parent who sued the Seattle public schools to stop using race in the school assignment process.

BRAND: And now for another opinion we turn to Mary Myers(ph). She's a mother in Louisville, Kentucky, one of the school systems the court addressed today. Now, Mary Myers, you were not part of the case, but you followed it closely. What's your reaction?

Ms. MARY MYERS: Well, I guess I'm just like the rest of the country. I'm trying to digest this opinion and what happens from here. I'm personally committed to the 1954 Brown vs. the Board of Education ruling, and I feel that we, as a country, speak to diversity and this just contradicted our own policy.

BRAND: You have two children?

Ms. MYERS: Yes, I do.

BRAND: How old are they?

Ms. MYERS: My daughter is 16 and my son is 13.

BRAND: And will this ruling affect them directly?

Ms. MYERS: They are in magnet schools - I don't know.

BRAND: You grew up in Louisville. What do you think this will mean down the road for your city?

Ms. MYERS: Like I say, the rest - I'm just digesting all this. Being 49 years old, I remember when all things weren't as equal in education. No way do I ever want to see us go back to that.

BRAND: So when you grew up and went to school, what did the schools look like?

Ms. MYERS: I started out in parochial school and Catholic school, and we were pretty diverse. Then I went over into public schools for a while and it was mostly African-American.

BRAND: So it was pretty segregated.

Ms. MYERS: It was pretty well segregated.

BRAND: Right. And now, what do the schools look like?

Ms. MYERS: Oh, the schools now, I mean, you just see all kinds of nationalities, the children, black, white, it's more than black and white. It's just everybody.

BRAND: Well, is there a way, do you think, to achieve that, to achieve true integration in the schools, without bussing?

Ms. MYERS: I don't think see it. I don't see it. Our neighborhoods are not desegregated. And as I speak (unintelligible) socio-economically, no. It's just - there are diversity in some neighborhoods, but not a whole lot.

As we go towards our east, it's predominantly white neighborhoods. My son, he went to a east end school farther away. I live in the east end, too, but this is farther towards the east. And without those buses rolling, I'd sit out there and picked them up every day. You are not going to see very many minorities in those schools.

This is the price that we pay to have a fairer education, and I think it's a price that people are willing to pay. Our children are fine with this. Leave these children alone; let them go to school together. It's more than after they come out to learn their education, they've got to go into the workforce and work together. They will see all kinds of people. I mean, we have to stop this madness and let these children grow up in desegregated schools. They're going into a desegregated workforce. Well, this country is on a bad road with this. It's a bad decision.

BRAND: Mary Myers of Louisville, Kentucky, thank you very much for speaking with me.

Ms. MYERS: Thank you.

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Parsing the High Court's Ruling on Race and Schools

Supreme Court building

The high court issued a ruling Thursday that limits the use of race to assign public school enrollment. Karen Bleier/AFP/Getty Images hide caption

itoggle caption Karen Bleier/AFP/Getty Images

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The Supreme Court on Thursday struck down two public school plans that used race as a factor in deciding where students attend classes. The 5-4 ruling on plans from two major public school districts — in Seattle and Louisville, Ky. — is likely to prompt revisions of similar plans in schools across the country.

Here, a look at the ruling and its impact.

Why did the Supreme Court strike down the racial diversity plans?

The court's conservative majority found that plans in Seattle and Louisville that considered race when assigning students to schools went too far to achieve racial diversity. In announcing the 5-4 decision, which split the court along ideological lines, Chief Justice John Roberts said the districts "failed to show that they considered methods other than explicit racial classifications to achieve their stated goals."

Justice Stephen Breyer wrote a dissent that was joined by the court's three other liberal justices.

In a concurring opinion, Justice Anthony Kennedy agreed that the Seattle and Louisville plans went too far. But Kennedy would not go as far as the other court conservatives, who suggested that race may almost never be considered as a factor. Instead, Kennedy said race may be a component of school plans designed to achieve diversity. To the extent that Roberts' opinion could be interpreted as foreclosing the use of race in any circumstance, Kennedy wrote, "I disagree with that reasoning."

What does this decision mean for other public school plans that consider race as a factor?

The decision narrows the arsenal of tools available to public school districts seeking to achieve or maintain racial diversity. However, because of Kennedy's concurring opinion, the decision does leave the door open for race to be used as a factor in limited circumstances.

Recent high court rulings have addressed diversity plans in higher education. Thursday's decision applies specifically to K-12 public education. However, even the majority justices disagreed on whether and how race may be considered as a factor in public school admissions. So, it isn't clear how this ruling will affect programs and circumstances in which a student's race is considered — such as admissions to competitive magnet programs. That uncertainty leaves school districts some room to maneuver.

What is clear is that school districts cannot classify students by race for the purpose of school assignments, as the Seattle and Louisville school plans did. Using race for other educational purposes, such as to track enrollment, is still permissible, based on Kennedy's concurring opinion.

What kind of school diversity plans did Seattle and Louisville have in place?

Both the Seattle and Louisville school districts used school assignment plans to maintain racial diversity, though the plans varied slightly.

The 98,000-student Jefferson County district, which includes the city of Louisville, formerly was under a court-supervised desegregation plan, but in 2001, it was declared to be "unitary," or free of the vestiges of past racial segregation.

After that, Jefferson County voluntarily adopted a "managed choice" plan that allowed race to be considered as a factor for some student assignments to schools. The plan sought to maintain black enrollment at no less than 15 percent and no more than 50 percent at each school.

The 46,000-student Seattle school district was never ordered to desegregate. But in 2000, it adopted a plan that weighed race as one of several "tiebreakers" in deciding admissions to the district's 10 high schools when there are more applicants than spaces.

Why were these school plans challenged?

Both school districts' plans were challenged by parents as a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. A majority of the Supreme Court agreed that the plans were unconstitutional.

In Jefferson County, the district's race-conscious plan was challenged by a white parent whose son was denied a transfer to his neighborhood school in 2000 because of his race.

The Seattle policy was challenged in 2000 by several white families whose children were denied admission to a new neighborhood high school. The white families were later joined in the suit by black families whose children were denied assignment to traditionally black-majority high schools.

Both plans previously were upheld by federal appeals courts as being narrowly tailored to achieve racial diversity.

How does this ruling compare with other recent Supreme Court cases on diversity and education?

The opinion is the first to touch on the issue of diversity and education since 2003, when a 5-4 ruling upheld the limited consideration of race in college admissions to attain a diverse student body. Since then, Justice Sandra Day O'Connor, who approved of the limited use of race, has retired. Her replacement, Justice Samuel Alito, was in the majority that struck down the school districts' plans in Louisville and Seattle.

The 2003 cases looked at the undergraduate and law-school admissions policies at the University of Michigan. In those cases, the court upheld affirmative action in college admissions in principle, and it supported the idea that using race as one factor to promote classroom diversity is a permissible goal.

Does the ruling affect the use of affirmative action in colleges and universities?

No. The majority opinion explicitly does not reverse the court's 2003 decision upholding the right of colleges and universities to use race as one of several factors in achieving a diverse student body. In introducing the decision on public schools, Roberts noted that there are "considerations unique to institutions of higher education." Those considerations, Roberts said, make it appropriate to take race into account as part of a "holistic review" of a university applicant's qualifications.

How does this decision affect the legacy of Brown v. Board of Education, the landmark 1954 decision that outlawed segregation in public schools?

Whether the ruling upholds the spirit of Brown depends on whom you ask.

In a separate opinion siding with the majority, Justice Clarence Thomas, the court's only black member, said that school assignment plans based on race are just as unconstitutional as race-based segregation was in 1954. "What was wrong in 1954 cannot be right today," Thomas said.

But the court's dissenters said the decision reneges on the promise of Brown. In a separate dissent, Justice John Paul Stevens called the majority's reliance on Brown to rule against integration "a cruel irony."

Written by Maria Godoy, with additional reporting and analysis by Mark Walsh, Washington editor/Supreme Court correspondent for Education Week. The Associated Press contributed to this report.

Supreme Court Rules on Race and Schools

U.S. Supreme Court Justices.

U.S. Supreme Court Justices. Mark Wilson/Getty Images hide caption

itoggle caption Mark Wilson/Getty Images

The Supreme Court issued a series of far-reaching split decisions Thursday, limiting the use of race to assign public school enrollment, blocking the execution of a mentally ill inmate and freeing manufacturers and retailers to set price floors for products.

The decision in cases affecting schools originated in Louisville, Ky., and Seattle could imperil similar plans in hundreds of districts nationwide, and it leaves public school systems with a limited arsenal to maintain racial diversity.

The 5-4 decision, with Chief Justice John Roberts announcing the court's judgment, saw Justice Stephen Breyer writing a dissent that was joined by the court's other three liberals.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts said.

Yet Justice Anthony Kennedy would not go as far as the other four conservative justices, saying in a concurring opinion that race may be a component of school plans designed to achieve diversity.

To the extent that Roberts' opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, "I disagree with that reasoning."

"A district may consider it a compelling interest to achieve a diverse student population," Kennedy said. "Race may be one component of that diversity."

He agreed with Roberts that the plans in Louisville and Seattle violated constitutional guarantees of equal protection.

Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts' opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

"To invalidate the plans under review is to threaten the promise of Brown," Breyer said.

In a separate ruling, the court blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill. Scott Louis Panetti shot his in-laws to death 15 years ago in front of his wife and young daughter.

Panetti knows what he did, but believes that he is on death row because he preaches the word of God, his lawyers say.

The convicted murderer says that he suffers from a severe documented illness that is the source of gross delusions. "This argument, we hold, should have been considered," said Justice Anthony Kennedy, who wrote the majority opinion.

Panetti's lawyers wanted the court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.

The Eighth Amendment to the Constitution, which bars "cruel and unusual punishment" also prohibits "the execution of a person who is so lacking in rational understanding that he cannot comprehend that he is being put to death because of the crime he was convicted of committing," they said in court papers.

In dissent, Justice Clarence Thomas said that Panetti had petitioned the federal courts twice in his case, but that the law allows only one petition.

"The court bends over backwards to allow Panetti" to bring his current claim, despite no evidence that his condition has worsened, or even changed, since 1995, Thomas wrote.

The justices also abandoned a 96-year-old ban on manufacturers and retailers setting price floors for products.

In another 5-4 decision, the court said that agreements on minimum prices are legal if they promote competition.

The ruling means that accusations of minimum pricing pacts will be evaluated case by case.

The court declared in 1911 that minimum pricing agreements violate federal antitrust law.

Supporters said that allowing minimum price floors would hurt upstart discounters and Internet resellers seeking to offer new, cheaper and less expensive ways to distribute products.

The principle that past decisions should be left alone "does not compel our continued adherence" in this instance, Justice Anthony Kennedy wrote.

From The Associated Press

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