Ann L. Majestic Tharrington Smith, L.L.P. August 2007
In a recent opinion, the Supreme Court of the United States sharply limited the ability of school boards to achieve racial diversity in schools through race-based student assignment decisions. In Parents Involved in Community Schools v. Seattle School District No. 1, decided June 28, 2007, the Supreme Court struck down two race-based school assignment plans as violating the Equal Protection Clause of the Fourteenth Amendment.1 The plans at issue were voluntarily adopted assignment plans which used race as either one factor or the sole factor in determining which schools students attended.2
The Seattle Plan
The policy used in Seattle’s public schools involved a “tiebreaker” system. Parents ranked their preferred schools for attendance by their children, and in the event that more students preferred a school than the school could accommodate, a set of tiebreakers was used to determine which students would be placed in the oversubscribed school. The first tiebreaker was whether the student’s siblings attended the preferred school. The second tiebreaker was the racial composition of the school and the race of the student. If the oversubscribed school’s racial makeup was not within ten percentage points of the district’s overall “white/non-white” balance, the racial tiebreaker was used to justify attendance assignments that would bring the school into balance. The final tiebreaker, if a third was needed, was the school’s geographic proximity to the student’s residence.
The Jefferson County Plan
The Jefferson County School District in Louisville, Kentucky required that all non-magnet schools maintain a student body consisting of at least fifteen percent black students and at most fifty percent black students (the district is thirty-four percent black and almost sixty-six percent white). Parents submitted their top two school choices for attendance by their children, and placement was determined according to available space and the racial balance at each school. If a school had reached the maximum or minimum percentage of black students, attendance assignments were not made that would further contribute to the racial imbalance.
The Court produced a fractured opinion in this case. Chief Justice Roberts authored the judgment of the Court, which was joined in its entirety by Justices Thomas, Scalia, and Alito. Justice Kennedy joined the Chief Justice’s opinion with respect to the unconstitutionality of both schools’ plans. However, Kennedy wrote separately with respect to several crucial parts of the decision, leaving Chief Justice Roberts without a five-vote majority on some of the more sweeping aspects of his opinion. Because only those parts of the opinion joined by five or more justices are binding as law, the law that emerges from Parents Involved is found in those sections of Justice Roberts’ opinion which are joined by Justice Kennedy.
What is clear from the decision is that the two race-based assignment policies at issue are unconstitutional, as are any other assignment policies which mirror them. Beyond that, however, little else is certain, and the broader meaning of the Parents Involved decision will take focus only as future cases are litigated and decided in light of the ruling.
Diversity as a Compelling Governmental Interest
In order to survive a challenge under the Equal Protection clause, racial classifications by the government must be narrowly tailored to further a compelling government interest. This two-part requirement is commonly described as the “strict scrutiny” standard. Perhaps one of the most dramatic aspects of the Chief Justice’s opinion is his contention that neither the creation of diversity in schools nor the avoidance of racial isolation is a compelling government interest. Had he been joined by four other justices in this claim, the ramifications for schools nationwide would have been immense. However, Justice Kennedy explicitly split from the Chief Justice’s opinion on this point, stating, “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.” While the Supreme Court has recognized that diversity in the classroom is a constitutionally legitimate government interest in the higher education setting, the split on the issue in Parents Involved leaves us without a clear holding as to whether the same is true at the elementary and high school levels.
Constitutionally Sound Approaches to Achieving Racially Diverse Schools
Race-Conscious Measures Must Be “Narrowly Tailored”
As mentioned above, all racial classifications by the government must be narrowly tailored to achieve a compelling government interest in order to be constitutionally valid.
A majority of justices objected to the type of categories utilized by each of the school districts, finding that the classifications were not tailored narrowly enough to survive the Court’s strict scrutiny. Seattle classified students as “white” or “non-white,” and Jefferson County classified students as “black” or “other.” The Court held that these crude classifications embody a limited notion of diversity, one which is out of line with a concept of diversity that would further the educational benefits asserted by each school district.3 Justice Kennedy points out that in school assignment cases, the government bears the burden of justifying its use of racial classifications. In doing so, the government must be able to explain specifics like who makes school assignment decisions, what oversight is employed, under what circumstances an assignment decision will or will not be made on the basis of race, and how it is to be determined which of two similarly situated students will be subjected to a given race-based decision.
What emerges from the both the Chief Justice’s opinion and Justice Kennedy’s opinion is the notion that binary conceptions of race are very unlikely to pass constitutional scrutiny as being “narrowly tailored.” If, in the future, diversity is embraced by the Court as a constitutionally sound interest for lower schools to pursue, schools will have to develop criteria for diversity that are more comprehensive than simply “white/non-white” or “black/other” distinctions. The Court appears to be looking for some notion of diversity that considers various minority groups, is tied to readily-identifiable educational goals, and is not merely a reflection of a school district’s racial makeup. Additionally, ambiguities will not be interpreted in favor of the school district, so any assignment programs that do classify students on the basis of race must do so in a precise and transparent fashion.
Race-Conscious Measures Must Be Part of a Holistic Approach to Achieving Diversity
From the holding in Parents Involved, it is clear that schools may not set up strict racial percentages or ratios to be maintained in the student body through manipulation of individual students’ school assignments. It is unclear, however, what actions remain permissible in efforts to prevent the resegregation of public schools.
Proceeding on the assumption that diversity in schools is a constitutionally sound government interest, Justice Kennedy writes that school assignments may take race into account but must do so in a general, holistic fashion. Under Kennedy’s approach, race may be considered as one component of diversity, along with other demographic factors and students’ special talents and needs. Kennedy also outlines potential alternative approaches that may achieve the same outcome as race-based school assignments without relying on the classification of individual students according to their race. In his view, districts are permitted to create diversity through means such as strategic site selection for new schools, drawing of attendance zones with general recognition of the demographics of the neighborhood, targeted recruitment of students and faculty, and allocation of resources for special programs. Kennedy was not joined by any other justices in his separate opinion, and his arguments carry no legal weight. Nonetheless, because Kennedy is frequently the swing vote on the current Court, many commentators view his opinion as foreshadowing the direction in which the Court will move and a roadmap for future efforts to create diversity in schools.
Chief Justice Roberts’ opinion points out that one major weakness of the two programs at issue is their correlation only to each district’s specific racial demographics, rather than to any pedagogical concept of diversity that is required to obtain clearly-identified educational benefits. Roberts points to the Court’s opinion in Grutter, a 2003 case upholding affirmative action in law school admissions, where the Court concluded that the law school did not “count back” from its applicant pool in order to reach the meaningful number of minority students believed to be necessary to attain a diverse student body. Echoing the Grutter decision, Roberts writes that schools should “work forward from some demonstration of the level of diversity that provides the purported benefits” rather than simply identifying a desired racial balance and achieving it through student assignments. Although Roberts was joined only by a plurality of justices on this point, certainly schools that tie any race-conscious measure to recognized educational benefits will be on stronger constitutional footing than those that seek to achieve a proportionate balance based on the district’s racial makeup.
Race-Conscious Measures Must Be Used Only as a Last Resort
A final principle to emerge from the Parents Involved decision is the requirement that racial classifications be used only as a last resort to achieve a compelling interest. The Court is clear in its view of racial classifications as odious, and wherever possible schools must seek race-neutral alternatives. If racial classifications are utilized, the school district will have the burden of proving that it considered methods other than explicit racial classifications and those methods would have failed to achieve the stated goals.
A majority of justices took issue with the minimal effect that the two programs actually had with respect to the actual number of students whose school assignments were impacted. The Court seemed to interpret the minimal effect as evidence that other means would have been equally effective. Therefore, schools using racial or race-conscious classifications should be prepared to prove that such classifications contribute substantially to achieving the desired goals.
While the Supreme Court’s decision in Parents United is a significant blow to the voluntary desegregation efforts of school districts across the country, the Court has not entirely closed the door to considering race to overcome or avoid de facto segregation. Policies that make school assignments based largely on a student’s race are now clearly unconstitutional. On the other hand, race-conscious measures that encourage a diverse student body such as school site selection, attendance zone drawing and teacher and student recruitment seem likely to survive legal challenge. Also, depending on the future composition of the Court, it is possible that the consideration of a student’s race as one of many factors in student assignment may be allowed, especially when the use of race-neutral approaches is not effective. This possibility is much less clear, however, and fraught with greater legal risk.
1No state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amen. XIV. 2The Court’s opinion does not apply to race-based student assignment plans that have been ordered by a judge as a remedy to past discrimination in the district. 3In justifying their racial classifications, both school districts claimed that broad social and educational benefits result from racially integrated schools. More specifically, Seattle contended that its assignment program furthered the interests of reducing racial concentration in schools and ensuring that racially concentrated housing patterns did not prevent nonwhite students from having access to the most desirable schools.