The debate over affirmative action will return to the Supreme Court this fall when the justices consider for the first time the sensitive question of whether public schools can use race as a factor in assigning children to schools.
The court, which agreed yesterday to hear appeals involving two school districts, has not visited the issue since 2003, when it ruled that colleges and universities could take race into consideration in admission policies. The key vote in that case came from now-retired Justice Sandra Day O'Connor, and some legal analysts predicted the K-12 cases could allow the new court to broadly revisit that finding.
Challenges to the two local diversity plans, involving schools in Seattle and in Louisville, Ky., could turn now on O'Connor's successor, Justice Samuel A. Alito Jr., and the new chief justice, John G. Roberts Jr. Neither man has indicated how he would rule, but both have conservative credentials suggesting they might strike down programs that use race as a factor in assigning students to public schools.
"I think most people believe that Alito is not going to be as hospitable to the importance of diversity as O'Connor was," said Michael Greenberger, a University of Maryland law professor and former Justice Department official. "This could be a case where a wholesale attempt will be made to head down a different path."
The nation's highest court barred segregation in public schools in its landmark Brown v. Board of Education ruling in 1954. But its more recent history on the issue has been murkier, and the Seattle and Louisville cases will mark the first time the justices have addressed whether a school district's goal of having a racially diverse student body conflicts with constitutional protections against discrimination.
Parents in the two districts contend that local plans to boost racial integration hurt their children, because they were blocked from attending the schools of their choice. In both cases, lower federal courts ruled in favor of the school districts.
Ruling in a pair of cases from the University of Michigan in 2003, the court said that race could be used as a factor in evaluating student applicants - but not without limitations. The court's 5-4 vote that spring upheld weighing race in student admissions at Michigan's law school but struck down a stricter program for undergraduate admissions.
Still, the Michigan cases might not offer a clear road map for the cases involving public secondary and elementary schools.
Roger Clegg, president and general counsel for the Center for Equal Opportunity, a conservative advocacy group in Washington, noted yesterday that in its 2003 decision, the Supreme Court said that any race-based evaluations in a college setting should be considered on an individual basis and not as part of the broad mechanics of admissions.
"In the K-12 context, except for situations where maybe a magnet high school gives an entrance exam and carefully evaluates each student, it's very unlikely that each student is being given that kind of individual attention," Clegg said. "You would expect the court to be more skeptical at the K-12 level than in the higher education context."
Jeffrey Milem, an education professor with the University of Maryland, College Park, worked closely with the legal team that defended the University of Michigan admissions policies. But he said the changed makeup of the Supreme Court could mean a different result for the Seattle and Louisville cases, which the court is expected to hear at the start of its next term.
"When we started working on this stuff for the Michigan cases - years ago, before they even were the Michigan cases - we targeted all our efforts at Justice O'Connor, because we knew she was the one that had to be convinced," Milem said. "With the recent appointments to the court, it's going to be much harder."
Others who have worked on earlier cases were more optimistic. Robert A. Sedler, a constitutional law professor at Wayne State University, worked on early desegregation lawsuits against the Louisville school system. He said yesterday that the successful diversity argument made at the college level in 2003 should apply now to lower schools.
"I couldn't picture the court saying that this is not a compelling interest," Sedler said. "Because if it's a compelling interest at the college level, then it's a compelling interest at the lower grades. The question will be: How do you do it? What are the guidelines?"
The two cases before the court involve slightly different programs. In Seattle, a group of parents challenged any use of race in assigning students to schools. To counter years of segregated housing patterns in the city, the school district had adopted a program that generally allows students to pick the high school they want to attend but uses race as one "tiebreaker" if too many students choose the same school.
In Louisville, parent Crystal Meredith sued over a 2001 plan that the district had voluntarily adopted after emerging from a court-ordered desegregation plan. Meredith claimed that her son, Joshua, was not allowed to attend a school in the family's neighborhood because he is white.
In ruling on the Seattle program late last year, the San Francisco-based 9th U.S. Circuit Court of Appeals looked to the Michigan cases for guidance. But the judges cautioned that policies surrounding competitive admissions to colleges and universities were different from assigning students to public secondary schools.
Writing a concurring opinion, Circuit Judge Alex Kozinski pointed to that problem.
"There is something unreal about ... efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here," he wrote in the October ruling. "I hear the thud of square pegs being pounded into round holes."
Court rulings on race in schools
1954 --Brown v. Board of Education of Topeka, Kan., holding that state-imposed segregation by race - or "separate but equal" facilities - in public schools denies equal protection under the law.
1971 --Swann v. Charlotte-Mecklenberg Board of Education, N.C., providing judges with broad power to fashion remedies to racial segregation if school districts fail to do so.
1978 --Regents of the University of California v. Bakke, striking down racial quotas but embracing for the first time the concept of affirmative action by saying admissions policies can take race into account.
1991 --Board of Education of Oklahoma City v. Dowell, making it easier for school districts to abandon forced busing of students once racial desegregation has been achieved.
2003 --Gratz v. Bollinger and Grutter v. Bollinger, banning formulas that award points based on race for admission to the University of Michigan's undergraduate and law schools. But the court permits consideration of race as part of a "holistic review" of every applicant.