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Court weighs race, schools

As the practice of busing for desegregation enters the nation's rear-view mirror, American school districts have been looking for a way forward.

What can they do to keep schools integrated without being sued? Past rulings offered a few legal signposts but no road map.

The U.S. Supreme Court took a step toward clearing things up Monday, pointedly questioning lawyers in two cases where parents have challenged efforts to keep schools racially balanced.

The court's ruling, expected sometime before its summer recess, directly affects school districts in Seattle and Louisville. But it could have enormous implications for the two largest school districts in the Tampa Bay area.

Pinellas County will end its 35-year practice of assigning children to schools by race next year, and district officials are struggling to find a legal way to keep schools racially balanced while also heeding calls to keep children in schools closer to home.

In Hillsborough County, some schools have concentrations of black children approaching 90 percent. Officials would be open to seeking a better balance if the court gave them the green light.

Although lawyers shy away from predicting Supreme Court rulings, the justices showed glimpses Monday of how they might be leaning. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito often seemed skeptical of the school districts' rationale for assigning students based on race. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer at times sounded critical of the parents' arguments.

Anthony Kennedy proved the busiest justice Monday. His questions were frequent, pointed and aimed at both sides, giving credence to speculation that he could be a swing vote on the school desegregation issue.

Clarence Thomas, the only black justice, did not weigh in on what many see as the court's most defining ruling on race and education since Brown vs. Board of Education in 1954.

Districts' defense

In Monday's oral arguments, lawyers for the Louisville and Seattle school districts defended their choice plans, which used race as a secondary factor in assigning students to schools.

Parents in both districts sued when their children were shut out of their first-choice schools because they were white. The parents argued that assigning kids by race is unconstitutional and that American society has progressed to the point where the practice is no longer necessary.

The districts contend that the plans were "narrowly tailored" to allow the least possible harm to students' constitutional rights. They also argued that the goal of racial diversity was worth taking the constitutionally risky step of classifying people by race.

As Michael Madden, the chief lawyer for the Seattle school system, spoke about the benefits of racial diversity in the classroom, Scalia interrupted, saying that was "certainly an admirable goal." But he questioned whether it was a good enough reason to justify classifying children by race.

Having a laudable goal "doesn't mean you can achieve it by any means whatever,'' Scalia said.

Lawyers for the parents have argued that neither district tried to achieve diversity by first exploring "race-neutral" means. Such methods include assigning kids to schools based on their family incomes, which has had mixed success in some districts.

Ginsburg, Souter and Kennedy were puzzled that anyone would use "race-neutral" means when clearly the goal is to achieve a racial balance.

Souter said it seemed like a way to "hide the ball" from people. Kennedy twice called it "odd."

Breyer closely questioned U.S. Solicitor General Paul Clement, who argued the Bush administration's position that districts should not use race in school assignments. The justice harkened back to a 1971 Supreme Court ruling that gave school boards the green light to remedy discrimination with busing plans.

"That's what this court said 35 years ago," Breyer said. "Thousands of school districts across the country, we're told, have relied on (that ruling) to try to bring about a degree of integration. ... Do you want us to overrule it? Why?"

Clement's answer: Given the high court cases that have come since then, all of them far less supportive of busing, schools districts would have been "misguided" to rely on the 1971 ruling.

Roberts appeared skeptical about claims by the Seattle and Louisville districts that the rights of students denied a seat in a choice plan weren't violated because they still were given a seat in another school.

The chief justice compared it to black children in the 1950s, noting that they too were denied seats based on their race and given a place in other schools. How, he asked, was their situation different from the children shut out in Seattle?

The widely watched cases drew big crowds to the Supreme Court despite bone-chilling weather. About 200 college students chanted "Integrate, don't segregate!" and "Old problem, new day! Affirmative action must stay!"


After the arguments, in the plaza below the court's towering white columns, some predicted a return to segregation and racial discrimination if the court rules in favor of the parents.

It would be "a reversal of historic proportions,'' warned Theodore Shaw, president of the NAACP Legal Defense and Educational Fund. "What children should be hearing is that we value integration."

Others saw a new day when school districts could spend more time and money on education than on the racial makeup of schools.

"This is not about black and white. This is about individual rights," said Teddy Gordon, the lawyer representing Louisville parents. "There's got to be a better way."

"This is not about black and white. This is about individual rights."

Teddy Gordon, lawyer representing Louisville parents