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Diversity's discontents

The U.S. Supreme Court should move very carefully as it considers whether voluntary efforts to maintain integration should be viewed as harshly as the old government-sponsored segregation. The impact on school districts and communities across the country, including those in Hillsborough and Pinellas counties, will be significant if even milder versions of efforts courts once required to end segregation are now found to be unconstitutional attempts to promote voluntary integration.

As Justice Ruth Ginsburg put it Monday: "What's constitutionally required one day gets constitutionally prohibited the next day. That's very odd." Louisville, Ky., finds itself in that predicament. Its school district was under a federal desegregation court order for 25 years before its discriminatory ways were considered remedied. The school district then adopted a racial diversity plan of its own, only to be challenged.

The Louisville and Seattle voluntary integration plans, both before the high court, speak to a historically significant transformation in some U.S. communities. A half-century after thousands of Army troops and federalized National Guard members were called to protect nine African-American students admitted to a Little Rock, Ark., high school, some elected school boards are now embracing the educational value of racial diversity.

Those plans do take a student's race into account, which is why they warrant thorough judicial scrutiny. But when Chief Justice John Roberts, a former Reagan administration critic of desegregation, tries to equate Seattle's school assignments to those of Topeka, Kan., in the 1950s, he trivializes the debate. One is designed to promote racial understanding; the other was born purely of bigotry and hate.

The court's task is complicated by racial history and court precedent, and by the racially affirmative policies of hundreds, if not thousands, of school districts across the country. Just three years ago, in approving a University of Michigan law school admissions plan that used race as a factor, the court even seemed to answer Roberts' own question of equity.

"Not every decision influenced by race," the majority wrote then, "is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context."

If the Supreme Court were to decide that schools have no business dealing with racial diversity, the effects could be far-reaching and unpredictable. Would a district be prohibited from building a new school at a location designed to promote racial diversity? Would magnet schools, often created for the expressed purpose of promoting diversity, be objectionable? Would school boards have to justify spending extra money in high-need schools if the students were all of one race?

Pinellas and Hillsborough counties are both emerging from court desegregation orders, and they are among the districts that face uncertainty. A community task force appointed to recommend changes to the Pinellas choice plan already has argued that diversity is an important goal to be pursued. If the court were to deny Seattle's efforts, it presumably would do the same for Pinellas.

In the Michigan higher education case, the majority mused that some limited form of racial preferences might be necessary for another 25 years. What's changed in the intervening three years, other than the makeup of the court itself?