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Supreme Court Revisits Race in Public Schools

December 4, 2006 at 12:00 AM EDT

LEE HOCHBERG, NewsHour Correspondent: Being the center of a Supreme Court case was the last thing Kathleen Brose imagined when she and her husband bought this house with a view of Mount Rainier in a tony Seattle neighborhood.

KATHLEEN BROSE, President, Parents Involved in Community Schools: We moved into this neighborhood believing it would be a great place to raise a family and that our kids would attend the neighborhood schools, just like we did when we grew up.

LEE HOCHBERG: It didn’t work out that way. In 2000, her daughter, Elizabeth, graduated eighth grade and applied to the newly remodeled Ballard High School nearby. But that school was full. Under the Seattle district’s student assignment plan, her assignment was then based on whether it would help desegregate a school.

The district wanted the make-up of each Seattle school to mirror the racial breakdown of the district itself: 40 percent white; 60 percent nonwhite. So, though she had marked two other schools as back-ups, Elizabeth was assigned to Franklin High, a heavily black school with lower test scores eight miles away.

KATHLEEN BROSE: She got discriminated against because she was told she couldn’t go to three different schools because she had the wrong skin color.

LEE HOCHBERG: She’s white.

KATHLEEN BROSE: Yes, she’s white. She was told basically, “You have no value to us, except your skin color. We don’t care if it’s going to be a burden to have you get on that school bus every day.”

LEE HOCHBERG: Three hundred of the Seattle district’s 46,000 students were placed according to their race in the 2000-2001 school year. Brose, a former PTA president, led parents in a lawsuit against the school board. They argued the policy violated the Constitution and the Civil Rights Act of 1964.

KATHLEEN BROSE: It’s wrong. It’s illegal. To me, it’s immoral. This is the United States. We do not discriminate.

LEE HOCHBERG: The Seattle School District suspended the policy after the 2001-2002 school year, pending the legal challenge, but it maintains it has a compelling interest to provide diversity at all of its schools. Superintendent Raj Manhas.

RAJ MANHAS, Superintendent, Seattle Public Schools: You know, our role is to educate kids, not only to do really well in school, but to be very effective citizens of the future of our nation and the world. And the world is changing around us.

You know, it’s not all about what kind of grades we got; it’s about, how can we interact with others? How can we work with others? And so that itself is an educational benefit.

TEACHER: OK, how about Malcolm X? How many people see that probably one of the reasons that he was not taught to read well was because of race at the time?

LEE HOCHBERG: The Seattle district proudly shows off the educational and social environment at its Chief Sealth High School, where the racial mix is one quarter white, one quarter African-American, one quarter Asian-American, and a growing percentage of Latinos.

TEACHER: In a moment, you’re going to be writing about that, OK?

LEE HOCHBERG: But the district says, as good as the social mix is at this school, its other schools have been harder to integrate without use of the racial tie-breaker. Manhas says, with the tie-breaker, the district was able to mix 21 percent white students into Franklin High’s nonwhite majority. Without it, the school is now only 10 percent white.

RAJ MANHAS: I believe it will be a real loss if we lost even this small, one, little factor, which we have the ability to use right now, to promote more of this diverse learning environment for all of our students.

LEE HOCHBERG: Last year, the Ninth Circuit Court of Appeals in San Francisco upheld the school district’s policy. Writing for the majority, Judge Raymond Fisher said, “The district has a compelling interest in securing the educational and social benefits of racial and ethnic diversity.”

But four dissenting judges argued research studies are mixed on whether diversity benefits students academically.

Background for the cases

Marcia Coyle
The National Law Journal
The Supreme Court has said, in prior decisions involving voting rights and affirmative action, that race cannot be the sole factor.

JIM LEHRER: Now, the arguments today in the Supreme Court. Gwen Ifill is in charge.

GWEN IFILL: Today's arguments marked the first time the court has taken up the question of whether school districts can, on their own, use race-based approaches to end unintentional segregation in the nation's public schools. The parents in Seattle were also joined in their complaint by others in Louisville, Kentucky.

Their challenges were at the heart of lively argument today outside the Supreme Court, where protesters gathered before dawn, and inside the court, as well. As always, Marcia Coyle of the National Law Journal was in the courtroom.

They seemed to be very engaged, very lively today, Marcia.

MARCIA COYLE, The National Law Journal: It was, as you pointed out, both outside and inside the courtroom. The justices inside the courtroom had a lot of questions for the lawyers. I think there was a question from every justice, except Justice Clarence Thomas, who usually does not ask a question.

GWEN IFILL: Does it make a difference in the arguments as they played out today whether race is a factor in these kinds of decisions or the factor?

MARCIA COYLE: It does make a difference. The Supreme Court has said, in prior decisions involving voting rights and affirmative action, that race cannot be the sole factor.

Three years ago, the court took up the affirmative action cases involving the University of Michigan's admissions program for the university and its law school. And there the court said that race -- it would accept a limited use of race, if there was a compelling government or state interest, and the person or university here using race had narrowly tailored means to achieve the objective.

The objective in the university cases was that there was a compelling interest in diversity of education, particularly in the higher education context.

GWEN IFILL: Marcia, in these two cases, in Louisville and Seattle, were the programs crafted in a way in that race was the only determining factor about where these kids went to school?

MARCIA COYLE: No, not at all. In Seattle, entering ninth-graders had a choice of 10 high schools, and they were to rank them their first -- top three choices. If they applied to a school that was considered oversubscribed, full, the school district looked at so-called tie-breakers.

First, they looked to see if the student had a sibling at the school of choice. Second, they looked to see where the student actually lived, how close to the school that he or she wanted to be in. And then race became a tie-breaker.

GWEN IFILL: And this was the court's -- this was something that the cities did on their own. This wasn't something that was mandated by anybody.

MARCIA COYLE: Yes, it's very interesting. Seattle, actually back in the 60s and 70s, when many cities and school districts were under court orders to desegregate, voluntarily took on the effort to desegregate its schools. And Louisville, which was under a court order from 1973 -- I believe until 2000 when the order was lifted -- after the order was lifted, Louisville, on its own, voluntarily decided to maintain its integrated schools through this particular admissions program. So it is purely voluntary.

How race may be used in assignments

Justice Anthony Kennedy
U.S. Supreme Court
Well, the emphasis on the fact that everybody gets into a school, it seems to me, is misplaced, that the question is whether or not you can get into the school that you really prefer.

GWEN IFILL: This is one of those rare cases where we get to actually hear the audio portions of what some of the justices and the lawyers had to say. In this portion we're going to listen to now, Justices Roberts, Kennedy and Scalia question whether skin color should ever be the sole factor in determining school make-up.

The attorney we hear from is with the Seattle School Board. He was Michael Madden. And in this excerpt, the justices refer to Grutter v. Bollinger, the 2003 University of Michigan affirmative action case that Marcia referred to, and also Brown v. Board of Education, the landmark 1954 school desegregation ruling.

JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: Well, the emphasis on the fact that everybody gets into a school, it seems to me, is misplaced, that the question is whether or not you can get into the school that you really prefer. And that, in some cases, depends solely on skin color. You know, it's like saying that everybody can have the meal, but only people of a separate skin can get the dessert.

MICHAEL MADDEN, Attorney for Seattle School District: Well, like the Michigan cases, sometimes students in the end of the day have an assignment determined by race. Just like in the university cases, at some point, race will be a tipping factor. What's different, though, we put someone in a basically comparable school.

CHIEF JUSTICE JOHN ROBERTS, U.S. Supreme Court: Well, you're saying -- I mean, everyone got a seat in Brown, as well. But because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there's no problem here because everybody gets a seat distinguishable?

MICHAEL MADDEN: Because segregation is harmful. Integration, this court has recognized in Swann and in the first Seattle case, has benefits.

JUSTICE ANTHONY SCALIA, U.S. Supreme Court: Well, but...

MICHAEL MADDEN: This district was...

JUSTICE ANTHONY SCALIA: It seems to me you're saying you can't make an omelet without breaking eggs. Can you think of any other area of the law in which we say, "Whatever it takes, so long as there's a real need, whatever it takes"?

I mean, if we have a lot of crime out there, and the only way to get rid of it is to use warrantless searches, you know, fudge on some of the protections of the Bill of Rights, "Whatever it takes, we've got to do it"? I mean, any area of the law that doesn't have some absolute restrictions?

GWEN IFILL: Justice Kennedy was the one everyone was watching today, because it was Justice O'Connor who had done the swing vote thing last time. What was he like?

MARCIA COYLE: Very skeptical of the school district's arguments. He said that he felt that basically what was happening here in the school districts was racial balancing, and what that generally means is that the school district was trying to apply some kind of a quota. And that is unconstitutional.

The school district argues that it is not seeking set numbers. Race is sometimes a tipping point in making the decision, but there are other factors the school district looks at.

GWEN IFILL: It was also interesting listening to Chief Justice Roberts and Justice Alito, both of who are new to the court since the last time they had similar arguments to this. What did they add?

MARCIA COYLE: As you mentioned, earlier in their careers, they expressed skepticism about affirmative action and the use of race as a factor in other contexts. They also appeared skeptical. It does appear, at the end of the day, that the court is divided here, and Justice Kennedy may well hold the decisive vote. But it doesn't look very good for the school districts.

Defining equality

Justice Stephen Breyer
U.S. Supreme Court
Here we have no merit selection system. Merit is not at issue. The object of the people who run this place is not to create a school better than others; it is to equalize the schools.

GWEN IFILL: Well, let's compare this case to other precedent-setting rulings. The arguments today often boiled down to how to achieve and define equality. Here an exchange among Justices Breyer, Scalia and Ginsburg. The attorney for the Louisville parents was Harry Korrell, and Solicitor General Paul Clement represented the Bush administration.

JUSTICE STEPHEN BREYER, U.S. Supreme Court: Here we have no merit selection system. Merit is not at issue. The object of the people who run this place is not to create a school better than others; it is to equalize the schools.

HARRY KORRELL, Attorney for Parents Involved in Community Schools: I would direct your honor to the district court judges' decision. And there's a footnote in the decision in which she acknowledged that the schools were not of equal quality, that they provided different levels of education.

JUSTICE ANTONIN SCALIA: Well, of course they're not, and that's why some of them were oversubscribed and others were undersubscribed.

JUSTICE STEPHEN BREYER: I didn't say that they were. What I said was that the object of the school board and the administering authorities was to make them roughly equal. I said that, in terms of curriculum and faculty, they're about roughly equal.

And, in terms of choice, what you see is a wide variation in choice by those who want to go as to which is their preference among six schools over a period of five years. And that suggests a rough effort to create equality, not an effort, as in Michigan, to run a merit-selection system.

JUSTICE RUTH BADER GINSBURG, U.S. Supreme Court: The point I'm trying to make has been made by others, and let me read from Judge Boudin's decision. He said the choice is between openly using race as a criterion or concealing it through some clumsier proxy device. If you want to have an integrated school and you cite the school deliberately to achieve that objective, it's very hard for me to see how you can have a racial objective but a nonracial means to get there.

PAUL CLEMENT, Solicitor General: Well, with respect, Justice Ginsburg, I think there's a fundamental difference between -- have the same intent with two programs. There's a fundamental difference if one of them necessarily classifies people on the basis of their skin color and the other does not.

GWEN IFILL: The fundamental differences that the solicitor general was referring to often have to do with whether integration is at its root a good or not. Did this come up in the courtroom today?

MARCIA COYLE: Well, I think it was assumed that integration is good, and I think nobody disputes either that diversity in education, be it at the university level or in elementary and secondary education, is also important.

The government, which we just heard Paul Clement, was arguing that it's OK to have an objective to have diversity in education. You have to use...

GWEN IFILL: So how do you get there?

MARCIA COYLE: You have to use, he said, "race-neutral means." And this was what Justice Ginsburg was having trouble with. You have a racial objective but race-neutral means to achieve it? How do you do that?

And he responded -- and the parents' attorneys also said -- well, there are other ways. You can maybe build more magnet schools, put more money into teacher salaries. On the other hand, the school districts have provided evidence that those race-neutral means have not been able to secure integrated schools, particularly in the face of increasingly segregated housing patterns in this country.

GWEN IFILL: People on both sides of this case have been really teeing up to it for some time. And they have said and spoken almost in apocalyptic terms about the potential impact. What do the civil rights groups, for instance, say that the impact would be if the court were to eliminate these two cases, these two programs?

MARCIA COYLE: I believe they think that this would be a huge setback, almost a turning-your-back on Brown v. Board of Education. Right now, by some estimates, there are about 1,000 school districts that do voluntary school admissions programs like Seattle and Louisville.

And if the court says that those programs are unconstitutional or the means that's being used is unconstitutional, then these school districts really do believe that their schools will become segregated again.

GWEN IFILL: Which the parents groups aren't necessarily arguing for, but they are arguing for their own choice?

MARCIA COYLE: Yes, they are, exactly.

GWEN IFILL: OK. Marcia Coyle, as always, thanks a lot.

MARCIA COYLE: Thank you, Gwen.