Law & Courts

High Court Won’t Hear Race Appeal

By Andrew Trotter — December 13, 2005 5 min read
  • Save to favorites
  • Print

The U.S. Supreme Court declined an opportunity last week to rule on the constitutionality of a school district’s policy of weighing race as a factor in assigning students to schools. It has sidestepped a potentially thorny sequel to its 2003 rulings on affirmative action in higher education and left several lower-court rulings as the best available road map for districts that want to promote racial diversity with minimal legal risks.

The court on Dec. 5 refused to hear an appeal in Comfort v. Lynn School Committee (Case No. 05-348), a lawsuit involving a challenge by parents to a Massachusetts school district’s voluntary integration program. It was the first of several chances the justices may have in their 2005-06 term to examine districts’ voluntary consideration of race.

See Also

See related story,

Considering Race

Although it is not clear how many districts have adopted voluntary integration plans, some are in districts that have been released from court-ordered desegregation plans and have since adopted voluntary plans. In September, the U.S. Department of Justice reported that 328 districts nationwide were operating under court-supervised desegregation plans to which the U.S. government is a party.

Some districts that have adopted voluntary plans, including Lynn, have never had court-supervised desegregation plans.

Two other cases likely to be appealed to the Supreme Court involve voluntary student-assignment plans in the Jefferson County, Ky., school district, which was once under a court-ordered desegregation plan, and the Seattle school system, which for 21 years had a voluntary busing plan to desegregate its schools, phasing it out by 1999.

As is customary, the Supreme Court gave no reason for its unanimous denial of the Massachusetts appeal, and its action was not a ruling on the legal merits of the Lynn district’s plan. The justices let stand a 3-2 decision from July by the full U.S. Court of Appeals for the 1st Circuit, in Boston, that upheld the district’s plan.

Still, supporters of the district’s plan viewed the court’s refusal to review the case as a positive development. “I think school districts should feel increasingly comfortable with their ability and authority to consider race for purposes of promoting integration,” said Chinh Quang Le, an assistant counsel for the NAACP Legal Defense and Educational Fund Inc. in New York City. The civil rights organization filed a friend-of-the-court brief in the case at the appeals court level on the side of the Lynn district.

Three federal appeals courts have considered voluntary race-based school district programs in light of two important Supreme Court decisions from 2003 that dealt with consideration of race in higher education admissions.

In Grutter v. Bollinger, the high court broadly reiterated its approval of affirmative action in education under the proper circumstances and upheld an admissions policy at the University of Michigan law school that took race into account. In Gratz v. Bollinger, the court struck down Michigan’s undergraduate admissions policy because it automatically gave bonus points to members of certain underrepresented minority groups.

‘Narrowly Tailored’

The appellate courts in the three legal tests applied both decisions on university admissions plans, though chiefly Grutter, to public K-12 schools.

In the case involving the 15,000-student Lynn district, the 1st Circuit court concluded that the Michigan law school’s goal of reaping what the court called “critical” educational benefits from racial diversity in its admissions was similar to the school district’s goal of seeking “educational benefits that flow from a racially diverse student body in each of Lynn’s public schools and avoiding the negative educational consequences that accompany racial isolation.”

In the majority opinion, U.S. Circuit Judge Kermit V. Lipez said of the Lynn plan, “by reducing racial isolation and increasing intergroup contact, it has ameliorated racial and ethnic tension and bred interracial tolerance.”

Those benefits, he said, allowed the court to overlook the fact that race ultimately was “a decisive factor” in the assignment plan.

But in his dissent, Judge Bruce M. Selya said that in Grutter and Gratz, “the [Supreme] Court made it crystal clear that a race-conscious admissions program must use race in a flexible, non-mechanical way if it is to be considered narrowly tailored.”

A Colorblind System?

In the Kentucky case, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously upheld the district’s assignment plan. The court relied on the analysis of a federal judge in Louisville, Ky., who had upheld the 95,000-student school district’s plan in 2004 because it did not unduly harm members of any racial group.

U.S. District Judge John G. Heyburn II said that the district’s plan was using race in a limited way to achieve benefits for all students through its integrated schools.

In the Seattle case, the full U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled 7-4 on Oct. 20 that the 46,000-student district’s use of race as a tiebreaker when deciding which students to admit to high schools was narrowly tailored to meet the school district’s compelling interests.

In the majority opinion, U.S. Circuit Judge Raymond C. Fisher said that the school district had “made a good faith effort” to consider race-neutral alternatives to achieve desegregated schools, before choosing the assignment plan that includes a race-based tiebreaker. He noted that the district over many years had tried alternatives, including magnet and other special interest programs, and race-conscious districting.

“But when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution,” Judge Fisher wrote. The Seattle and Jefferson County decisions are both expected to be appealed to the Supreme Court later this term.

Sharon L. Browne, a lawyer with the Pacific Legal Foundation in Sacramento, Calif., which filed a brief in support of the Lynn parents’ case in the 1st Circuit, said that the three appellate decisions support “a trend, and I think it is a very sad trend,” toward using race in student assignment. She said that by allowing districts to consider race in assigning students, “we are teaching our children in public education that race matters, unless we [are to] have a colorblind education system.”

Thomas Hutton, a lawyer with the National School Boards Association, said that it is unlikely that the winning streak in the federal appeals courts for voluntary integration plans would stretch to all the appellate circuits.

“In one of these cases, we may get to point where an appellate court somewhere disagrees,” he said. “When that happens, it becomes [more likely that] the Supreme Court weighs in to resolve the split in the circuits.”

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
(Re)Focus on Dyslexia: Moving Beyond Diagnosis & Toward Transformation
Move beyond dyslexia diagnoses & focus on effective literacy instruction for ALL students. Join us to learn research-based strategies that benefit learners in PreK-8.
Content provided by EPS Learning
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Special Education Webinar
How Early Adopters of Remote Therapy are Improving IEPs
Learn how schools are using remote therapy to improve IEP compliance & scalability while delivering outcomes comparable to onsite providers.
Content provided by Huddle Up
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
Cohesive Instruction, Connected Schools: Scale Excellence District-Wide with the Right Technology
Ensure all students receive high-quality instruction with a cohesive educational framework. Learn how to empower teachers and leverage technology.
Content provided by Instructure

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Biden Administration Asks Supreme Court to Spare Huge E-Rate Funding Source
A lower court ruling has jeopardized more than $2 billion in annual funding for internet connectivity for schools and libraries.
3 min read
FILE - The Supreme Court is seen under stormy skies in Washington, June 20, 2019. In the coming days, the Supreme Court will confront a perfect storm mostly of its own making, a trio of decisions stemming directly from the Jan. 6, 2021 attack on the U.S. Capitol. (AP Photo/J. Scott Applewhite, File)
The Biden administration has asked the U.S. Supreme Court—shown here in June 2019—to reinstate a funding mechanism that distributes $2 billion annually for the E-rate program that supports internet connectivity in schools and libraries. A federal appeals court ruled that the mechanism was unconstitutional in July.
J. Scott Applewhite/AP
Law & Courts Court Revives Asian-American Groups' Challenge to New York City Selective Admissions
New York's program has sought to increase representation of Black and Latino students in its selective high schools.
5 min read
Image of a gavel
iStock/Getty
Law & Courts The New Title IX Regulation and Legal Battles Over It, Explained
The Biden administration's regulation that interprets Title IX to protect LGBTQ+ students faces multiple legal challenges.
5 min read
Claudia Carranza, of Harlingen, hugs her son, Laur Kaufman, 13, at a rally against House Bill 25, a bill that would ban transgender girls from participating in girls school sports, outside the Capitol in Austin, Texas, on Wednesday, Oct. 6, 2021.
Claudia Carranza, of Harlingen, Texas, hugs her son, Laur Kaufman, 13, at a rally for transgender rights in Austin on Oct. 6, 2021. The U.S. Department of Education's new Title IX regulation, which adds gender identity and sexual orientation to the definition of sex discrimination, has been challenged in multiple lawsuits and blocked in 26 states and at individual schools in other states.
Jay Janner/Austin American-Statesman via AP
Law & Courts Court Upholds Injunction on Arizona Transgender Sports Ban for Young Athletes
A federal appeals court upholds an injunction against an Arizona law, allowing two transgender girls to compete on female teams.
3 min read
Arizona State Superintendent of Public Instruction Tom Horne, left, a Republican, takes the ceremonial oath of office from Arizona Supreme Court Chief Justice Robert Brutinel, right, as wife Carmen Horne, middle, holds the bible in the public inauguration ceremony at the state Capitol in Phoenix, Thursday, Jan. 5, 2023.
Arizona schools chief Tom Horne, left, takes the ceremonial oath of office at the state Capitol in Phoenix in January 2023. The Republican is the lead defendant in a lawsuit filed by two transgender girls challenging the Save Women's Sports Act, which bars transgender women and girls from female sports.
Ross D. Franklin/AP