Corrected: An earlier version of this story contained a misquote from law professor Mark Berends about the years when the nation made substantial progress in desegregating schools. The correct time frame was between 1968 and 1972, in Berends’ view.
When the U.S. Supreme Court heard nearly five hours of arguments about the consideration of race in higher education on Oct. 31, much of the focus was understandably about the details of undergraduate admissions at Harvard University and the University of North Carolina. They are the two institutions whose practices are being challenged by opponents of affirmative action in the cases.
But in a handful of briefs filed with the court, and in some of the comments during the lengthy arguments, there were reminders that racial diversity among student enrollments remains a delicately pursued but often elusive goal in K-12 schools as well.
“If you’re Black, you’re more likely to be in an underresourced [K-12] school,” Justice Sonia Sotomayor said to a lawyer challenging race-conscious admissions at the University of North Carolina. “You’re more likely to be taught by teachers who are not as qualified as others. You’re more likely to be viewed as … having less academic potential.”
Sotomayor’s observation may have been influenced by a friend-of-the-court brief filed in the college cases by the Council of the Great City Schools, the coalition of the nation’s 76 largest urban school districts. The brief focused on telling the court that racial segregation and inequality persist in elementary and secondary schools, nearly 70 years after Brown v. Board of Education of Topeka held that racially segregated schools were inherently unequal.
“Despite the best efforts of school districts like the council’s members to create more diverse schools, racial segregation has increased over the last two decades,” the council’s brief says. “As a result, educational inequities persist.”
The council’s brief was principally written by John W. Borkowski, a veteran education lawyer who has worked in the trenches helping school districts strive for racial diversity and equity.
Borkowski, now with the Chicago law firm Husch Blackwell LLP, was on the briefs and at the lawyer’s table in the Supreme Court in 2007 helping the Seattle school district defend its race-conscious student assignment plan. The court struck down the plan in Parents Involved in Community Schools v. Seattle School District and greatly curtailed the ways K-12 schools may use race in assigning students to schools.
With the council’s brief in the college admissions cases, Borkowski said he felt it important to present some of the diversity challenges K-12 schools face.
“If you believe public education is a public good and builds on a promise of opportunity, then you believe in the need for racial diversity,” he said in an interview.
Reports document resegregation of the nation’s schools
Borkowski marshaled research evidence for the Great City Schools brief’s assertion that racial segregation in the nation’s schools persists and has been getting worse.
The brief cites a 2019 report from the Civil Rights Project at the University of California, Los Angeles, which concluded that at the 65th anniversary of the Brown decision, “intense levels of segregation … are on the rise again.”
Black students, who accounted for 15 percent of public school enrollment at the time of the report, attended schools where Black students made up an average of 47 percent of enrollment, said the CRP report.
Students of Asian background were attending schools where 24 percent of students were fellow Asian Americans. Meanwhile, white and Latino students were the most segregated groups, the CRP report said.
White students, on average, attended a school in which 69 percent of the students were white, while Latino students attended a school in which 55 percent of the students were Latino.
Black students attended schools with a combined Black and Latino enrollment averaging 67 percent, and Latino students attended schools with a combined Black and Latino enrollment averaging 66 percent.
“The data in this report shows a disconcerting increase of Black segregation in all parts of the country,” says the report. “This is true even though African Americans are a slowly declining share of the total student population, and many now live in suburban areas.”
The CRP report indicates that the proportion of “intensely segregated minority schools,” defined as those with an enrollment of 90 percent or more of non-white students, increased from 14.8 percent of schools in 2003 to 18.2 percent in 2016.
Borkowski also turned to a more recent assessment of K-12 diversity—a 2022 report from the U.S. Government Accountability Office.
That report found that more than one-third of U.S. public school students (about 18.5 million) attended a predominantly same-race/ethnicity school, defined as one where 75 percent or more of the student population is of a single race/ethnicity. The report, based on the GAO’s analysis of U.S. Department of Education data for the 2020-21 school year, also found that 14 percent of students attended schools where 90 percent or more of the students were of a single race/ethnicity.
The GAO report did suggest some good news for diversity: The 38 percent proportion of K-12 public school students attending a predominately same-race/ethnicity school had declined slightly from a proportion of 42 percent in the 2014-15 school year. But still, nearly half of white students attended schools predominantly with students of their own race/ethnicity compared to nearly a third of Hispanic students and nearly a quarter of Black students in 2020-21, the GAO found.
Borkowski’s brief cites further studies for the proposition that the persistence of segregation in schools contributes to a racial gap in academic achievement. While the brief cites 2019 National Assessment of Educational Progress data, such disparities have been confirmed by more national achievement data released just weeks ago.
According to the latest results, which tracked the first time students took the NAEP test since the start of the pandemic, average reading scores for 4th grade Black, Hispanic, white, and Native American students fell from 2019 to 2022, while Asian students’ average scores improved, widening the white-Asian performance gap from 7 points in 2019 to 12 points in 2022. (Reading scores for 8th grade Asian, Black, Hispanic, and Native students did not fall, as they did for white students of that age.)
Borkowski sought to tie these statistics to an argument in the college admissions cases that there continues to be a need for elementary and secondary schools to employ narrowly tailored race-conscious measures for assigning their students to schools.
The brief reminds the court that while the 2007 Parents Involved decision struck down systems of assigning students by race in the Seattle and Jefferson County, Ky., school districts, Justice Anthony M. Kennedy’s controlling concurrence in the case said “school boards may pursue the goal of bringing together students of diverse backgrounds and races through other means.”
Those means, Kennedy said, include strategic selection of sites for new schools; attendance boundaries drawn with “general recognition of the demographics of neighborhoods”; allocation of “resources for special programs”; “targeted” recruiting of students and faculty; and “tracking enrollments, performance, and other statistics by race.”
“Due to the resurgence of segregation and the persistence of racial and ethnic achievement gaps, school districts … must retain their limited authority under [Parents Involved] to take race into account in a narrowly tailored way,” Borkowski said.
Challenges to magnet school admissions take different view on racial diversity
Not everyone is on the same page as Borkowski and other advocates of diversity and the use of race in education decisions. In the college admissions cases, there is also a K-12-focused brief by several advocacy groups who oppose or are challenging race-conscious student assignments, particularly in selective magnet schools.
The Pacific Legal Foundation, based in Sacramento, Calif., filed a brief along with other groups telling the court that “racial balancing under the guise of diversity has infected K-12 education, where it denies students opportunities because of their race.”
The foundation is behind an ongoing legal challenge to the admissions program at Thomas Jefferson High School for Science and Technology, a highly acclaimed magnet school in the Fairfax County school system in suburban Washington, D.C. The suit, on behalf of a parents’ group called the Coalition for TJ, asserts that changes in admissions in 2020 to allocate a certain number of slots to the top 1.5 percent of students from each feeder school were enacted with a racially discriminatory purpose. They argue it had the effect of discriminating against Asian American applicants, whose numbers dropped significantly under the new system.
The brief discusses the Thomas Jefferson case as well as similar criteria at selective magnet schools in Montgomery County, Md.; Hartford, Conn.; and New York City.
“The admissions policies at issue in these cases were driven by an interest in increasing racial diversity at the schools,” says the Pacific Legal Foundation brief. “But they were implemented at the expense of other, highly deserving applicants—all because they are members of a disfavored racial group.”
Wencong Fa, a senior attorney with PLF, said in an interview that the American public school system should shift its focus from racial diversity goals to improving the education of all children.
“Just because a school does not consider its students racially diverse, that doesn’t mean it’s segregated,” he said. “The government use of race has a really sordid history. I think this [debate] is a distraction from the real problem, which is getting students the opportunities they need to succeed and thrive.”
Mark Berends, a professor at the University of Notre Dame and the director of the Center for Research on Educational Opportunity, was not involved with any briefs in the college admissions cases before the Supreme Court. He believes that K-12 schools should still be able to take account of race in assigning students to schools.
“We made substantial progress” in desegregating and diversifying school classrooms “from 1968 to 1972,” he said, referring to years when the nation made substantial progress in desegregating schools, in Berends’ view.
“Now we’re back to where we were. It’s a profound problem,” he said,"and it’s something we have to deal with because as a nation we are getting more and more diverse.”
