The Supreme Court's Impact on School Policies

July 19, 2007

The Supreme Court’s Impact on School Policies

Guests:

Naomi Gittins, the deputy general counsel for the National School Boards Association; Mark Walsh, an assistant managing editor for Education Week, who has covered the Supreme Court and legal issues for more than a decade; and Paul Beard, a senior staff attorney for the Pacific Legal Foundation.

Question from Mary Sullivan, Teacher, Southfield-Lathrup High Schoo0l:

I would like to understand the definition of “race-based assignments” please. Thank you!

Mark Walsh:

Mary, Yours is a good question to present some background of the race cases. The term “race-based assignments” refers to the fact that the two school districts involved--Seattle and Jefferson County, Ky.--had policies that sometimes considered students’ race when assigning them to schools.

In Seattle, the school district classifies children as white or nonwhite. In 2000, the district adopted a policy that called for using a student’s race as one of several tiebreakers for the district’s 10 high schools when certain schools were oversubscribed. In Jefferson County, which includes the city of Louisville, Ky., students are classified as black or “other.” The district’s student assignment plan sought to maintain a black enrollment of at least 15 percent, but no more than 50 percent, at each of its elementary and secondary schools.

In each district, the plans were challenged by the parents of students denied particular assignments to schools based on the students’ race.

Question from Jennifer Gleason, graduate student:

My question is about school districts’ responses to the Seattle-Louisville case. Given Justice Kennedy’s decision, which leaves room for districts to pursue alternative methods for achieving diversity, what options do districts have? I have heard about economic integration, but is that the only solution to achieve racial balance?

Mark Walsh:

Jennifer, Yes, one option is for districts to adopt race-neutral means for assigning students, including taking socioeconomic status into account. A number of districts around the country are trying this method, with varying degrees of success. (With success defined as not only maintaining socioeconomically diverse student enrollments, but also racially diverse ones.)

As you note, the key concurring opinion by Justice Anthony Kennedy refused to completely rule out that there would be circumstances in which schools could take race into account in assignment policies. He said schools are free to devise race-conscious measures that address school composition “in a general way” “without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”

Justice Kennedy then outline some methods that he suggested could pass muster, such as strategic site selection for new schools, drawing attendance zones with neighborhood demographics in mind, and recruiting students and faculty to school in a targeted fashion.

In the main dissent, Justice Stephen Breyer picked apart Justice Kennedy’s suggested permissible means as impractical or insufficient for most districts to achieve their goals.

Question from Bob Keeley, teacher, CPS, Chicago:

1. How does the Supreme Court justify its decision on the school de-segregation in light of its former leadership postion in Brown vrs. School Board from 1954? This court’s decision seems to overturn that case directly. Are we moving back toward Plessy-Ferguson once again. 2. In the NCLB why can’t there be more room for the heart and soul of humanity, namely the arts? In Chicago, CPS schools seem to have each elementary school relegated to a choice between Music or Art; that’s all. And the lesson is only ONE 40 minute period per week. To me, NCLB seems to throw out the arts.

Paul Beard:

1. To the contrary, the recent Supreme Court decision in PICS/Meredith only reaffirms Brown v. Board of Education. The question in Brown was whether the state could use race to separate the races in public schools. After the Court answered in the negative, it rendered an opinion on the proper remedy for ensuring integration (Brown II). In that case, the Court made clear the purpose of Brown I: To ensure that kids are no longer assigned to schools by the government on the basis of their race. I encourage you and others to read Brown II, which is often forgotten. The Court’s recent decision in PICS continues the Brown tradition by striking down policies that assigned students on the basis of their race. Whether the government uses race to keep us separate, or it uses race to force us together, the ends do not justify the means.

Something else to consider: Do we really want to let local school boards decide when it’s okay to use race to assign children to schools? What if, in the next decade or so,social scientists and school boards decide that it’s “beneficial” for the races to study separately? Would we then defer to the social scientists and school boards when they decide to forcibly separate the races? I should hope not. Why, then, would we EVER trust any government with race-based decision-making? 2. Unfortunately, I’m not qualified to comment upon this question, as interesting as it is. Thanks for your questions.

Question from Kirstin McCarthy, Program Associate, Business Higher Education Forum:

I’m interested to know if panelists could identify one or a few school district(s) that have successfully “limited their use of racial classifications when making school assignments”? I’m interested to understand what classifications, or combinations of classifications, have lead most successfully to diverse classrooms, and what benefits these school districts have gained from such school assignment classification systems.

Naomi Gittins:

Several districts that have received media attention in the wake of the PICS decision are San Francisco, Wake County, NC, Cambridge, MA, La Crosse, WI, Brandywine, DE as school districts that have moved away from assignment plans that take race into account to ones that are based on one or more factors including socio-economic status, poverty, home language, educational attainment of parents, student test scores, etc. The jury is still out as to whether these plans successfully promote diverse classrooms. The U.S. Department of Education touts them as successes, and Richard Kahlenberg, a proponent of SES as a means of achieving diversity, asserts that such plans do work. Others are less optimistic in their assessment about whether these plans do result in racially diverse schools that help close the achievement gap between whites and some minority groups (see NAACP LDF website). What is important to remember is that these districts as well as many others are committed to bringing the benefits of diverse classrooms to all their students and avoiding the harms of racial isolation, both of which are well documented and they will continue to struggle to accomplish these goals within the parameters of the law.

Question from John Stallcup APREMAT/USA:

Now that schools are as segregated as ever, more tax money is spent in the classrooms within districts that have the highest income students(excluding the extras provided by higher income parents), and labor agreements prevent real economic incentives for teachers to work in the poorest classrooms making seperate but unequal the reality on the ground is Brown V Board even relevant to what is now education in America?

Naomi Gittins:

You point out some of the difficult realities that confront public schools and our nation in providing high quality education to all children. There is no doubt that inequities continue to exist more than 50 years after the U.S. Supreme Court issued its decision in Brown v. Board of Education. But that, in my opinion, is all the more reason why public schools and the public at large must remember the promise of Brown and continue to work to eliminate those inequities. Brown, is in my view, the most significant Supreme Court decision of the 20th century that was a key catalyst in changing the way Americans of all colors learn and live together. If we say Brown is irrelevant to education in America today, we diminish what has been accomplished so far through the struggle of many, and we excuse ourselves from continuing the fight because we still have so far to go.

Question from Brenda Reddout, School Board Member, Polk County (Florida) Public Schools:

I have read the opinions of the Court related to utilization of racial classifcations in student assignments. I do not see an expected timetable for school district implementation? Am I correct on that? If so, what is the thinking of the panel? Thank you.

Paul Beard:

Excellent question. The day the Supreme Court’s decision came down last month, it became the law of the land. Every school district in the country is obligated to come into compliance with the decision as soon as possible. The longer a school district keeps its race-based assignment policy, the more likely it will be vulnerable to a lawsuit. Thanks and good luck, Paul

Question from Rochelle Rudnick, parent, Teaneck, New Jersey:

The Teaneck school district, which integrated voluntarily over 40 years ago, still buses students to maintain a racial balance in the public schools. Will Teaneck still be able to continue busing after this decision? Thank you.

Naomi Gittins:

It is difficult to answer your question definitively without knowing all the details, but I assume Teaneck buses students as part of a school boundary plan that is aimed at maintaining integrated schools. It is important to remember that 5 of the justices in the PICS decision (Justice Kennedy and the 4 dissenters) declared that avoiding racial isolation in schools is a compelling governmental interest that schools can strive to achieve--so Teaneck’s goal of maintaining integrated schools, in my view, would likely survive court scrutiny. It is also important to note that Justice Kennedy specifically mentioned the drawing of attendance zones and school boundaries as one acceptable means that could be race conscious without violating the Equal Protection Clause since no decisions about the admission of any individual student would be based on race. Drawing of attendance zones necessarily presumes that school districts will provide the necessary transportation.

Question from Marsha Kroeger, Literacy Coach, Milwaukee Public Schools:

In our area, we have a program called Chapter 220. Minority students are bused to suburban schools, and white students are bused into Milwaukee schools. I don’t know how much you know about the Metro Milwaukee area, but it is one of the most segregated areas in the country. How does the SC decision affect Chapter 220?

Paul Beard:

Thanks for your question, Marsha.

Let me start off by saying that we should be very careful about the use of the “segregated.” Segregation requires an actor (historically, government) that intentionally separates groups of people. There is no single government entity that I am aware of today that “segregates” people on the basis of their race. What you are describing in Milwaukee is racial imbalance, which is caused by many factors, including voluntary housing patterns. The answer to your question primarily depends upon whether the district is under a federal desegregation order.

If there is no desegregation order, then the policy could be vulnerable to a challenge under federal law. The Court’s decision made clear that the use of crude racial classifications of children to determine where they go to school is constitutionally impermissible.

Question from Joyce Haws, Communications Director, The National Assoc. for Neighborhood Schools:

The National Association for Neighborhood Schools believes that racial and ethnic balancing (“diversity”) will still be unconstitutionally sought by proxy through socio-economic assignment, through manipulation of special programs in magnet schools, etc. along with actual consideration of race -- continued manipulations which will then have to be challenged. We believe social engineers will not consider the June 28 ruling to demand totally race-neutral policies. Do you agree?

Paul Beard:

Frankly, I would not be surprised. California has a constitutional provision (Proposition 209) that strictly prohibits government entities from discriminating against or granting preferences to students on the basis of race. Proposition 209 has been the law since 1996. Yet, there are STILL government entities -- including school districts -- that flagrantly violate the law. Note that the use of socioeconomic status as a factor in school assignments would not violate any law that I’m aware of. If used strictly -- and not as a proxy for race -- it would pass constitutional muster.

Question from David Bloomfield, author, American Public Education Law:

How will the Parents Involved decision affect specialized programs for minority students, such as schools for black males or preparation for admission to gifted programs and college?

Naomi Gittins:

The PICS decision will probably not affect the law with respect to special programs for minority students such as academies for black males or preparation for admission to gifted programs and college. Before PICS, the Office for Civil Rights of the U.S. Department of Education (ED) and some courts had told schools that while they can maintain such special programs, they cannot restrict enrollment in them by race or sex. Although ED has recently moved to loosen restrictions on single sex schools and classes in some circumstances, there has not been a similar loosening with respect to single race programs. Bottom line: A school can offer special programs designed to meet the educational needs of black males or other minority groups but they are well advised to make them available to all students who want to participate and who otherwise meet the non-racial criteria of the program.

David J. Hoff (Moderator):

So many of your questions are about diversity issues. The court also ruled on cases regarding student speech and special education policy. We’ve received a few questions on those issues so far. Would anyone out there like to contribute new ones?

Question from Nick Ferentinos, mentor, California Scholastic Journalism Initiative:

What impact will Morse v. Frederick have in states that have statutory protection for free student speech? Those states are California, Colorado, Kansas, Arkansas, Iowa, Massachusetts and now Oregon.

Naomi Gittins:

Morse v. Frederick determined what the First Amendment of the U.S. Constitution says about student’s free speech rights with respect to pro-drug messages in school, but you are correct to point out that students may have stronger protections under state laws than they do under the federal Constitution. This is because states are free to give their citizens more, but not less, protection against government than the U.S. Constitution does. I don’t know the details of the statutes in any of the states you name, but if they do offer students more protection than the First Amendment of the U.S. Constitution, the decision in Morse does not eliminate those greater protections.

Question from Jim Burns, H/R specialist, Juneau School District:

Im a little confused by the quote from Douglas Mertz, Attnorney for Frederick on the Bong Hits for Jesus - “The Supreme Court resolved only the issue of whether the Constitution protects his free speech. That leaves the issue of whether the Alaska Constitution has greater free speech protections.” I would have thought that the Supreme Court is the law of the land, Mertz makes it sound like he can now go to the State since they did not like the Supreme Court ruling is this correct or am I misunderstanding his meaning/intent?

Naomi Gittins:

I think you are understanding him correctly. The Supreme Court’s decision in Morse v. Frederick does establish the law of the land with respect to the First Amendment of the U.S. Constitution. But while states cannot provide less protection for their citizens than what the U.S. Constitution mandates, they can provide more protection. I am not familiar with the Alaska Constitution, but it is possible that it contains a free speech provision that would offer Mr. Frederick more protection than the federal constitution and would place greater restrictions on school regulation of student speech.

Question from Bob Frangione, Teacher:

What exactly does the “Bong Hits for Jesus” decision have to do with freedom of speech?

Mark Walsh:

Bob, That seemed to be what the Supreme Court was saying by ruling that student Joseph Frederick’s message was not protected by the First Amendment. (Of course, the ruling in Morse v. Frederick was generally limited to messages that school officials could reasonably perceive to be about illegal drugs.)

I was somewhat surprise that even Justice John Paul Stevens, in his dissent, had little respect for Joseph’s intent to be provocative. Stevens called the “Bong Hits 4 Jesus” banner a “silly, nonsensical” message. But he argued that the majority was doing serious damage to the First Amendment by carving out an exception to protection for drug-related messages by students.

Question from David Rose, Governing Board Member, Charter Oak USD:

I noticed the word “advocating” in the “Bong Hits 4 Jesus” case, can a principal suspends a group of students who are caught with flyers that advocate students to walk off campus to protest against immigration policy?

Naomi Gittins:

Without more details, it is difficult to answer your question definitively. But you should keep in mind that Morse v. Frederick does not give school officials the right to suspend students just for “advocating;" the Court was clear that it was talking about schools being able to regulate pro-drug messages because schools are responsible for the safety and welfare of all students and there is no disputing that use of illegal drugs is harmful to students. The Court allowed schools to discipline Frederick because his message could reasonably be viewed as advocating something harmful to students’ health and safety. The situation you describe would most likely not fall into this category--although the students would be advocating conduct (walking off campus without permission), that might be contrary to school rules, it is not behavior that is inherently dangerous to student welfare. The situation you describe would also warrant caution on the part of school officials to ensure that they did not treat the students with the flyers promoting a protest of immigration policies any differently based on the viewpoint of the protesters. Schools are not allowed to engage in viewpoint discrimination.

Question from Mr. Steve Olguin, Social Studies Teacher (28 years):

The U.S. Supreme Court recently decided to support school districts in limiting student expression (free speech); even at off campus events. I teach my students the U.S. Constitution, including the Bill of Rights; how does this Supreme Court decision affect public schools and student rights?

Naomi Gittins:

Steve, I am sure you probably teach your students about the Tinker, Fraser and Kuhlmeier decisions when discussing student free speech rights at schools. The Court’s recent decision in Morse v. Frederick helped clarify these past rulings in only a very narrow way. The Court said that school officials may regulate student speech that may reasonably be viewed as promoting illegal drug use. The Court based its ruling on a the schools’ responsibility to protect the health and welfare of students.

Question from Dr. Dina Rosen, Kean University:

I am interested in the impact of burden of proof on meeting the needs of special education students. It is my observation that the current version of burden of proof, which is now on the parent and is a result of recent law changes, encourages districts to be non-compliant. Why does either side need to have the “burden of proof?” Why shouldn’t it just be that both sides have to prove their points and neither has the burden of proof? From your view, what are the advantages and challenges to the current law and to the changes I have just proposed? Please also respond to my question to my e-mail: drosen@kean.edu (I would welcome the opportunity to write with someone about this and or do research on it).

Naomi Gittins:

Dr. Rosen, as you may know, burden of proof is a creation of the law to help decisionmakers decide close cases. If both sides have done a pretty equal job of proving their points, as you say, in an IDEA hearing, the hearing officer needs something to tell him or her which way the scale should tip and that’s where burden of proof comes in. In the law, the burden of proof is normally assigned to the party challenging a particular action or status quo, unless there is an indication in a statute that the lawmaker intended the burden to be placed on the other side for particular policy reasons. In the IDEA, Congress did not provide for a shifting of the burden of proof although it did grant parents many other procedural safeguards to help ensure that their children with disabilities receive a free and appropriate public education. It would be disappointing to me if schools, in fact, failed to comply with the IDEA because they know parents bear the burden of proof in most cases, since the underlying premise is that children’s interests are best served when parents and schools work in a collaborative manner to devise individualized educational plans to meet a child’s particular needs. The Supreme Court noted that the law presumes that schools act in good faith and use their educational expertise to achieve this goal. My experience in talking to school attorneys around the country is that schools take this obligation very seriously.

Question from Jim Mordecai, Teacher, Oakland, Ca.:

Does it bother any member of this panel that all the members have either a right wing political bias or at best no political bias. Where is the balance without a person representing social progressive viewpoint?

Mark Walsh:

Jim, I appreciate your concern. For this chat, for which we thought (rightly so) that the race decision would be the prime topic, we did strive to have someone who had lined up on each side of the cases. We have that in Mr. Beard, whose organization (Pacific Legal Foundation) was on the side of the families challenging the race-conscious plans, and Ms. Gittens, whose group (NSBA) filed a friend-of-the-court brief on the side of the school districts. There are obviously lots of other views out there about the race cases in particular.

David J. Hoff (Moderator):

Thanks for those questions. We still have outstanding questions about diversity, so we’re going to turn back to that issue.

Question from Alex Rodriguez, Clerk, Tucson Unified School District Governing Board:

So it appears that those districts under Deseg today are not necessarily impacted by the recent decision. Are the two issues, DOJ Deseg Orders vs. this Decision at odds somehow? Please send email to alexrodriguez@post.harvard.edu

Naomi Gittins:

Alex, you’re right. The Court in PICS ruled with respect to school districts that adopt voluntary integration plans or assignment plans that take race into account to achieve diversity, not those operating under court-ordered or approved plans that are aimed at remedying the effects of past de jure segregation. If it has been determined that the district engaged in past racial discrimination, the plans adopted to address this discrimination would in general not be invalidated by the PICS decision.

Question from Jeff Theus, Principal, Wellcome Middle:

What impact will this decision have on districts currently under federal desegregation orders, who have not applied with the Office of Civil Rights to be released from the order, and using race as part of the student assignment policy?

Paul Beard:

That is an excellent question. As you may know, the Supreme Court’s decision to strike down the two assignment policies was based, in part, on the fact that neither school district had in place a desegregation order. So, presumably, if a school district is under a desegregation order, the district would have to apply (or an affected party would have to sue) to have the order lifted.

Question from Caroline,Resource Teacher, Cox Elementary:

What systems are in place to maintain racial balances within school districts?

Naomi Gittins:

Caroline, School boards use many different mechanisms to create and maintain racial diversity in their districts--please keep in mind that diversity and racial balancing are not the same thing. Usually districts do not use just one means but adopt several different strategies in combination. Sometimes the mechanisms they use are not voluntarily chosen by the districts but are imposed by a court in what is called a desegregation order when a district has been found to have engaged in past discrimination. A court may order such a district to use mechanisms such as racial balancing that a district without a history of segregation could not adopt voluntarily. That said some of the mechanisms include setting attendance zones, establishing magnet schools, site selection of schools, targeted recruitment efforts, resource allocation, controlled choice plans, or student assignment plans that use race neutral factors such as SES, poverty levels, neighborhood demographics, home language, ELL status, disability status, educational attainment of parents and test scores.

Question from Margaret Sorensen, PhD Candidate, Walden University:

Given the persistent de facto segregation (due to housing patterns, etc) and the persistence of the achievement gap between various racial groups--are districts or states open to suits based on the concept of Opportunity to Learn?

Paul Beard:

My expertise lies only in the area of race discrimination and preferences by state actors. Unless a plaintiff can show intentional segregation by a school district, I don’t see how he/she could bring a race discrimination suit to alleviate racial imbalance in his/her school or a widening achievement gap. An individual, of course, has no “right” under our Federal Constitution to attend a school of a particular racial balance; he/she only has a right not to be racially discriminated against by government actors -- whether it be for the purpose of compelled segregation or compelled integration. However, I do not know if a suit would lie under the Equal Protection Clause on the grounds that conditions at a particular public school are particularly bad.

Question from Deanna Enos/Retired Teacher:

I’m so happy that this is going to be discussed online. The schools have made every effort to have diversity because that was considered ideal learning environments for students in a democracy. With this Supreme Court decision now does it mean schools will be penalized for their previous methods to create this diversity?

Paul Beard:

With the supreme court decision, schools will have to work harder to achieve the diversity they desire without crudely classifying each child by the color of his/her skin.

Question from Diane P. Proctor, teacher, R.F. Kennedy School:

In a wealthy, mostly white, suburban city outside of Boston, the city decided (in the early 1970’s) to enroll bus loads of students from Boston Public Schools in a concerted effort to end segregation. Now, the same city’s cultural background has changed such that the city is no longer mostly white. It is now filled with its own, mostly equally distributed, multi-ethnic population. The city is still sending bus loads of Boston students into the previously white city. The city is now having a major crisis because the school department is having a hard time providing enough classroom space, programs, teachers and support financially for everyone who now go to these public schools. What advice do you have for the city to keep the schools integrated and still have enough money for the students who live in this city to go their own schools? There is a lack of space to build enough schools to hold all the students. Would you keep the Boston students coming into the schools? If not, how do you ask them to leave?

Naomi Gittins:

Diane, the solutions to the situation you describe are clearly very complex and illustrate the need for school boards to carefully consider, with the assistance of legal counsel, all the circumstances in their schools and communities to devise plans that serve the educational needs of all their students. The PICS decision requires that school districts review their current plans that may include race conscious factors to see if they are still permissible, but schools should not immediately jump to the conclusion that all uses of race are out--that would be a gross misinterpretation of what the Court said. The PICS decision did leave schools with options to continue using race to avoid racial isolation and promote the educational benefits of diversity, although they do need to be careful to do so in a way that demonstrates coherence between educational goals and the use of race and to thoroughly consider race neutral alternatives that may achieve those goals. Clearly, where schools have programs or plans that include race as a factor that would operate in the school year 2007-08, they cannot just immediately abandon them without considering the consequences and what to do next. This obviously will take some time as schools must carry out their review of current plans and adoption of new plans in a transparent manner that involves their communities in the process. But I would urge schools to begin the process now, if they have not already done so, and to act in good faith with “all deliberate speed.” What happens in your community is ultimately something that your board and the Boston Public Schools must determine is in the best educational interest of all students with the help of your communities and other experts familiar with your circumstances .

Question from Robert A. Levin, Nonprofit Organization Staff Developer, New York, NY:

For many years, Pittsburgh has used its magnet schools program to help stimulate and maintain racial balance. Making application for the program is obviously voluntary, since most Pittsburgh children attend neighborhood rather than magnet programs. However, admission to the magnet could be denied because there is an excess of either of Pittsburgh’s two student categories: “Black” or “Non-Black: (current Pittsburgh folks, please correct me if my recollection is inaccurate or outdated). What may be the implications of the Supreme Court’s recent decision on a magnet system such as Pittsburgh’s?

Naomi Gittins:

Pittsburgh, as well as all other school districts, should carefully evaluate their magnet school admissions criteria, especially where they are not part of a court ordered plan. Magnet schools are an important tool that schools can use to encourage diverse student enrollments, but the Court’s decision in PICS makes clear that school districts should be very cautious in using race in making decisions about whether individual students will be admitted to a particular program. The Court was especially critical of the Seattle and Jefferson County plans for using what it called “blunt” racial categories (white/non-white) without showing how this type of classification furthered the districts interests, especially given the diverse enrollments in the districts. This does not mean that race cannot be used at all--Justice Kennedy said that schools need to be creative in their use of race as part of a “more nuanced individual evaluation of schools needs and student characteristics.”

Question from Elisabeth Titrud;SOS Course Director;International Officer School:

Statistics have shown that despite laws against segregation we still continue to be segregated by race and social economic status. We have seen with NCLB accountability in content standards, teacher standards and administrative standards. The fact that integration has not worked with the tools we have applied does not mean the system should not be held accountable to the value of providing a diverse educational experience that reflects the US culture and globalization. By removing one leg of accountability in a good education system, diversity, this will reflect diversity as not being of value. Why do you deem it necessary to not up-hold a value, educational diversity, with accountability when statistics show it still needs to be instituted to provide opportunity for all groups of our diverse population?

Paul Beard:

You raise several interesting points, and I’ll try to address them all. First, you claim that “we still continue to be segregated by race and social economic status.” I’d like to know who is “segregating” us by race or socio-economic status? Historically, segregation (which, by definition, requires an actor to do the separating) was enforced by state actors. There is not a single school district in the country, of which I am aware, that segregates its student population by race or socioeconomic status. I think what you really mean is that there are racial and socioeconomic imbalances that you would like to see remedied by the state. I’m inclined to distrust state-sponsored racial gerrymandering of any kind, whatever the goal is -- whether it be to forcibly separate kids on the basis of their race or forcibly integrate kids on the basis of their race.

Second, you seem to claim that a child’s skin color somehow contributes to “educational diversity.” How so? Do we assume that a black child will not be adequately educated unless he is in a classroom with white children? What about a child’s “whiteness” enhances a minority child’s education? Can white students not succeed if they happen to e in a majority-white school? Aren’t characteristics like socioeconomic background, religious background, or nationality far more indicative of real educational diversity?

Third, you seem to assume that racial diversity produces tangible educational benefits. But what if tomorrow, social scientists produced studies showing that racial separation actually produces greater educational benefits? Would you then be in favor of allowing school districts to use race to segregate the races to achieve those benefits? Clearly, the answer is no. As a matter of policy, it is dangerous to give government actors that much power. And, as a constitutional matter, it shouldn’t make a difference what the social scientists of the day believe: The Equal Protection Clause means what it says yesterday, today, and tomorrow.

Question from Chimurenga Waller, President, International People’s Democratic Uhuru Movement:

Please give specific examples of how integration benefited Black children in light of their tremendous failure rates all over the U.S.

Naomi Gittins:

You are right to note that we still have far to go in closing the achievement gaps between white and minority children. But the educational benefits of learning in a diverse environment are well documented. To learn more about this you might want to read a document recently issued by the National Academy of Education, called Race Conscious Policies for Assigning Students to Schools: Social Science Research and the Supreme Court Cases at http://www.naeducation.org/Meredith_Report.pdf; a study by Professor Doug Harris called Lost Learning, Forgotten Promises: A National Analysis of Schools Racial Segregation, Student Achievement and Controlled Choice Plans, at www.americanprogress.org/issues/2006/11/lostlearning.html and the amicus brief submitted in the PICS Case by over 550 social science researchers on the benefits of diversity (as well as numerous other supportive briefs) at www.naacp.ldf.org/VOLINT/add_docs/volint_school_amicus.html

Question from Sam Smith, School COunselor-outreach coordinator, University Laboratory High School:

How will this ruling effect recruitment and outreach programs that target under served minority students for gifted and talented academic programs?

Paul Beard:

If the programs are subsidized privately, then the decision should have no impact. If, however, the programs are administered by a government actor, then they will be subject to strict scrutiny by the courts. If the programs are doling out educational opportunities on the basis of students’ race, I suspect they would not survive under the decision. If race is one of many factors -- and race can be shown to be absolutely necessary to effectuate the programs’ goals -- the programs have a better chance of survival.

The underlying question really is: Shouldn’t these programs be available to ALL students regardles of their skin color? If the goal is to ensure that the most “under served” gain access to these special programs, using socioeconomic factors would better advance that goal (and be constitutional).

Question from Patt Patterson, Science Teacher:

How will race-based assignments be dealt with especially for African-American males who are in the field of Science, or any teaching field for that matter? NOTE: Very few African-American males (blacks) in Science K-12)

Naomi Gittins:

The Court’s decision did not address teacher assignments based on race, but the Court clearly signaled to schools that if they are going to adopt any policy based on race, they must be able to show a strong coherence between the use of race and the asserted educational goals--in other words, what is the district achieving in terms of educational benefits by making decisions based on race. In this regard, it is helpful to remember that back in 1986 in the case of Wygant v. Jackson Bd of Educ., the Court said that the objective of alleviating societal discrimination or of providing role models was not enough to justify a school district’s affirmative action policy setting racial quotas for teacher layoffs.

Question from Cindy Praytor, Principal, East Lawrence Middle:

Could this decision have any bearing on a district under court order to force the racial balance of the staff at each campus to equal the racial balance of the students in the entire district?

Paul Beard:

The Supreme Court’s recently rendered decision probably would have less of an impact on the type of policy you are referring to than would other Supreme Court cases. In Wygant v. Jackson Bd. of Education (1986), the Supreme Court struck down a policy much like the one you describe. And, as recently as 2003, the Supreme Court declared that racial balancing for its own sake is “patently unconstitutional.” (Grutter v. Bollinger).

Question from Dr. Charity Smith, Assistant Commissioner, Arkansas Department of Education:

How will the limited use of racial classifications impact existing desegregation Court Orders?

Naomi Gittins:

The limits the Court placed on the use of racial classifications in PICS related to voluntary integration or student assignment plans, not to court ordered desegregation plans. When a district is under a court ordered plan, there has already been a determination that the district engaged in racial discrimination that may be remedied by race conscious means. The Court’s ruling in PICS did not change this principle. In reviewing a school district’s desegregation plan and practices, it would be useful to confirm that each strategy the district is using is accordance with the court order, which may have been revised several times during the course of the case.

Question from Victoria Potts, Graduate Student of Ed Leadership, University of Cincinnati:

How are independent schools affected by these decisions? When I graduate I will be working in an independent school setting and I have yet to fully understand the responsibilities in these settings.

Mark Walsh:

Victoria, See my answer above. If you are talking about student speech, independent schools undoubtedly have freer rein to set limits than public schools do.

David J. Hoff (Moderator):

The chat’s been going for an hour. We’re schedule to stop now. But we have several questions still unanswered. I’ve decided to keep the chat going until they’re all posted.

Question from Laurie Seigel, Media Specialist, Oratory Prep School:

Will these decisions reach into the private sector as well? Do these have any effect on a teacher’s rights?

Mark Walsh:

Laurie, By “these decisions” I’ll assume you mean the race ruling and perhaps the student speech ruling, which were the two most important education cases in what was an unusually busy Supreme Court term for K-12 education issues. These cases would not affect private schools in the same way in that the actions at issue were government conduct, and they are being analyzed under federal constitutional principles (the 14th Amendment equal-protection clause in the race cases; the First Amendment free-speech clause in the Bong Hits case). There are legal considerations for private schools’ consideration of race. In a 1976 decision, Runyon v. McCrary, the Supreme Court held that private, nonsectarian schools that advertise enrollment to the public at large may not limit their enrollment to white students and refuse enrollment to black students. As for teachers’ rights in the area of free speech, a slightly different legal framework applies to public school teachers than the one used to analyze student speech.

Question from Theresa Jordan, Principal, West Broad Street Elementary School:

How does this recent decision on limiting the use of racial classifications when making school assignments impact districts that use lotteries to assign students to schools throughout the district to obtain “racial” balance? How about ones that mix-it up by busing?

Paul Beard:

Lotteries are a constitutionally permissible way of achieving “diversity.” The decision says that, so long as crude race classifications do not determine a child’s assignment, the policy is okay. Also, a voluntary busing program to encourage movement within the district is constitutionally permissible if not done on the basis of students’ race.

Question from John Boggs, reporter for the Jackson Times Newspaper:

In Kentucky school choice is not allowed, instead you have school districts. The local independent school and the county schools have been fighting over the numbers of students that can attend either school. The independent says any student living inside he city school district is welcome to go to any county school while the county school district says only a equal number of county students can go to the independent school. This bickering has cost both school districts thousands of dollars and almost bankrupted the independent district. How would the court rule on this issue if brought before it?

Mark Walsh:

I think any court would need and would get access to all the facts of this situation. One thing to keep in mind is that many questions of school district organization and boundaries are matters of state law, and federal constitutional issues aren’t necessarily implicated.

Question from Desiree Ivey, Director of Teacher Training, Shady Hill School:

What impact will the Supreme Court decision have on higher education’s admission policies as well as school districts’ hiring policies?

Mark Walsh:

Desiree, Good question.

As to the race decision’s application to higher education, the court majority (Justice Kennedy joined this part of the opinion) took pains to distinguish the K-12 diversity cases from the consideration of race in a selective higher education admissions program that the Supreme Court upheld in 2003 in Grutter v. Bollinger, which involved the University of Michigan’s law school.

Chief Justice John Roberts (who was not on the court at the time)said that in upholding the law school’s admissions program, the court “relied upon considerations unique to institutions of higher education,” such as the “expansive freedoms of speech and thought associated with the university environment.”

Many analysts believe the court did not want to disturb the University of Michigan rulings so soon after they were decided, even though the court’s newest members, Chief Justice Roberts and Justice Samuel Alito, would likely have ruled against the law school program.

As for school district hiring (and teacher assignment) practices, I think the ruling probably will have some impact, but you also have employment laws at play.

Question from Tom Wildman, Math Teacher, Gadsden HS,NM:

Why not use SES instead of race to balance schools. This would address need (and probably race bias).

Mark Walsh:

Tom, As I noted to another questioner, some districts are using socioeconomic status, but with varying degrees of success in achieving their desired diversity goals. One thing to note about a student’s socioeconomic status is that it is prone to change, while a student’s racial status would not.

Question from Jennifer A. Thompson, Individual:

There would never have been a need to setup race-based assignments, if there had not been a policy to separate and exclude black students in white schools in the first place. In St. Louis, there are school districts that only participated in the desegregation programs because a court ordered that the policy be established, and the districts would receive substantial sums of money for transporting the students to their school districts.

The outcomes have been interesting, because some school districts have become mega-districts with capital project expansions on their lofty campuses, move target programs for students, and highly paid educators. Unfortunately, the students who were intended to benefit from the policy have been tracked into lower educational expectations, or outright expelled permanently, and the district has admitted its receipt and spending of the state funds.

My question is was there ever any intent to educate black students fairly, since also noteworthy, these same districts did not comply in enrollments or diversifying their teaching staffs? Thank you for responding to my question.

Paul Beard:

Thanks for the question. Unfortunately, I don’t know enough about the history of each school district to answer your question adequately. Obviously, education is of fundamental importance for all children, regardless of their race. This is why I (personally) am in favor of vouchers, which would increase competition among public and private schools and result in an enhanced educational product for all.

Question from Nancy Ginsburg Gill, education consultant and writer:

Given that most colleges now have more qualified female applicants than male applicants, admissions departments are using what could be considered a form of affirmative action to ensure that they have a gender balance in their student bodies--i.e., males with lower grades and test scores are being admitted over more qualified females. Is there likely to be a test case over gender discrimination? Is so, how do you you think the decision will play out, given that the court has decided that the desire to have representative ethnic and racial groups on campus does not justify using different standards for admission?

Paul Beard:

The answer, as always, is “it depends.” Under federal law, courts will scrunitize gender classifications less closely than they will racial classifications. So a public college/university’s admissions policy that gives a preference to males over females will be stricken unless the college/university can demonstrate that the policy “substantially advances” an “important” state interest. Since the Supreme Court has recognized diversity as a “compelling” state interest, it is possible that such a policy would survive a court’s review, so long as gender was just one of mmany “diversity” factors. (A race-based admissions policy will not survive unless “narrowly tailored” to serve a “compelling” state interest -- a slightly more exacting standard than the one used to review gender classifications).

Now, under California law, the policy would likely not survive. The California Constitution prohibits race-based and gender-based admissions policies in public colleges/universities -- without exception.

Question from Linda Lenz, publisher, Catalyst Chicago:

Can an individual student’s race or ethnicity be used in any way to achieve student body diversity?

Mark Walsh:

Linda, Sometimes the simplest questions are the most difficult to answer. Yours is bordering on the metaphysical, but I think you mean it in a very practical way.

I think Chief Justice Roberts and the others in his plurality (Scalia, Thomas, and Alito) would say no. But I think Justice Kennedy believes that districts may adopt general policies designed to promote racial diversity as long as they don’t treat “each student in different fashion solely on the basis of a systematic, individual typing by race.”

I’d be interested in our other guests’ responses to this question.

Question from John Sweeney, parent and PTA board member, Fairfax County Virginia:

This is related to the “bong hits for jesus” case and limiting right to speech. A middle school in Fairfax County recently implemented a “no physical contact” rule policy, which they stated was put in place to control students from hugging, kissing, high-fiving, etc. They claim that the students were out of control and were creating a disruption with all this physical contact. Do you think this policy could be successfully challenged in court? Do free speech laws apply to this situation?

Naomi Gittins:

John, free speech laws sometimes do apply to expressive conduct so to the extent that the physical contact involved some intent of the speaker to express a point of view then the First Amendment might apply. That being said, I do not believe that this school rule could be successfully challenged in court since it is clear that while students do have First Amendment rights in school, they are not the same as the rights that citizens have in other contexts. Courts universally recognize that First Amendment rights of students must be determined in the context of the school environment. That means when schools aren’t trying to squelch a particular point of view just because they happen to disagree with it, they do have a fair amount of leeway to regulate student speech, especially in the classroom and in other situations where students are under school control or the event is school-sponsored.

Question from Richard Fossey, Professor, University of North Texas:

The Supreme Court vacated the 9th Circuit’s decision in Harper v. Poway Unified School District. How do you think the Supreme Court would decide the case if it chose to review a Harper-like decision on the merits?

Naomi Gittins:

That’s an interesting question because the Ninth Circuit in Poway relied on language from Tinker that the Supreme Court did not even mention in its recent decision in Morse v. Frederick. In Tinker the Court said schools could regulate student speech where there was a likelihood of material and substantial disruption or that infringed on the rights of others. Like many other courts in student free speech cases, the Court did not comment on what it thought of the relevance and vitality of the second aspect of Tinker--infringement of the rights of others. Some Supreme Court watchers say the Court’s reliance in Morse on the welfare of students suggests that it might be open to school efforts to restrict student speech that denigrates or ridicules others based on certain immutable personal characteristics, but others are less confident that the Court would extend the student safety rationale to other areas beyond things like illegal drug use, pointing to Alito’s limitation of the Court’s ruling to that subject. Alito also does not endorse the concept that schools can restrict student speech just because it interferes with a school’s educational mission. While Justice Thomas clearly would give schools more of a free hand, his view would probably not carry the day in a Harper-like case.

Question from Matt Karlen, Social Studies Coordinator, Educational Service District 112:

What likely cases do you anticipate related to schools on next year’s Supreme Court docket?

Mark Walsh:

Matt, Good question. While there were six cases involving school districts, private schools, or teachers’ unions decided by the justices this past term, there is only one education-related case on the docket so far for the term that begins next Oct. 1. That is a special education case, New York City Board of Education v. Tom F., that deals with private school placements under the Individuals with Disabilities Education Act. The court has shown a lot of interest in IDEA issues in the past couple of years.

There are appeals in other education cases in the court’s pipeline, and the justices could yet add one or more of them to next term’s docket.

David J. Hoff (Moderator):

That last question is the perfect way to end this chat. Thanks for your participation.

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