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The U.S. Supreme Court is returning to the battle over Affirmative Action. Today the court announced that next term it will decide whether public schools may use race as a factor when their assigning students to schools in order to promote racial diversity. NPR Legal Affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, reporting:
Three years ago the Supreme Court by a five to four vote reaffirmed a 25-year-old decision that allowed state colleges and universities to use race as a factor in college admissions. The 2003 decision written by Justice Sandra Day O'Connor seemed to settle the affirmative action question to a large extent and in December with O'Connor still on the bench, the court let stand and declined to review a lower court ruling that allowed secondary public school assignments based in part on race in Lynn, Massachusetts. Today just months later with Bush appointee Samuel Alito now having replaced O'Connor the court said it will examine that very issue in cases from Seattle, Washington and Louisville, Kentucky. As Fordham Law Professor Robin Lenhardt put it.
ROBIN LENHARDT (Fordham Law Professor): I would have expected the court to wait at least another year or two before returning to this issue.
TOTENBERG: While the timing may seem to be a mark of unusual aggressiveness by a new court led by a new Chief Justice, John Roberts, there is no doubt that the court's 2003 decision on college admissions left important questions unanswered. After all while the court agreed that racial diversity was important to higher education, the justices also required that individual assessments be made for each college or university applicant. And at the secondary school level that is simply impractical. In Seattle for instance, a city with 46,000 students and 10 public high schools, any child can go to any high school. But if a school becomes oversubscribed says the school board's lawyer Ken Madden, other factor become tie-breakers.
KEN MADDEN (Seattle Lawyer): Siblings first, proximity is second unless the school is out of balance.
TOTENBERG: A school becomes racially out of balance with the cities 60/40 white to minority ratio is off by 15 percentage points in either direction in a given grade at a school. Then race becomes the second factor in deciding who gets in. Lawyer Madden.
Mr. MADDEN: The Seattle plan that's at stake in this litigation is it allows students to have an option not to be confined by the demographics of their neighborhood.
TOTENBERG: But a group of 50 to 100 parents whose children did not get their first choice sees the Seattle plan as a denial of the Constitution's guarantee to equal protection of the law. Their lawyer is Harry Crowell.
HARRY CROWELL (Lawyer): Skin color is what's driving the school district here and we object to that.
TOTENBERG: Seattle has a 40-year history of promoting racial diversity in its public schools. Ironically though it abandoned the plan at issue in this case four years ago because of what it saw as the uncertainty created by the litigation. Since then say officials, some schools have become whiter and some more black and Asian. The situation in Louisville defers from Seattle in one important way. The Louisville schools were once segregated by law and until relatively recently were under court order to desegregate. The Louisville plan is an attempted to avoid resegregation. But as in Seattle the question before the Supreme Court is whether the state has a legitimate and constitutional interest in promoting racial diversity. In short whether race can be considered at all and if it can, how much? Nina Totenberg, NPR News, Washington.