Justices tackle racial issue

WASHINGTON — WASHINGTON -- The Supreme Court justices, hearing arguments on school integration, signaled yesterday they are likely to bar the use of race when assigning students to the public schools.

Such a ruling could deal a blow to hundreds of school systems across the nation that use racial guidelines to maintain a semblance of classroom integration in cities whose neighborhoods are divided along racial lines.


It would be a major victory for those who have called for "color-blind" decision-making by public officials.

Yesterday's argument also could mark the emergence of a five-member majority determined to outlaw the official use of race in schools, colleges and public agencies.


"The purpose of the equal protection clause is to ensure that people are treated as individuals rather than based on the color of their skin," Chief Justice John G. Roberts Jr. said.

Three years ago, the court upheld affirmative action at colleges and universities. But that 5-4 decision depended on Justice Sandra Day O'Connor, who has since retired. Since then, President Bush's two appointees - Roberts and Justice Samuel A. Alito Jr. - have joined the court, and the tenor of yesterday's debate suggested that a new majority would frown on race-based affirmative action if the issue returned.

At issue yesterday were the racial integration guidelines adopted by the schools boards in Seattle and Louisville, Ky.

Seattle allows its students to choose which high school they want to attend, but it tried to keep the racial balance at the schools within 10 percentage points of the school district's overall racial balance. In 2001, before the program was suspended, 210 white students and 90 minority students were denied their first choice of a high school.

The Louisville schools seek to keep black enrollment at schools between 15 percent and 50 percent.

Both policies were challenged by parents of a small number of students, most of them white, who were denied their first-choice schools because of their race.

School officials could not say how many districts use racial guidelines that could be affected by the court's ruling. But a ruling against such policies could endanger many magnet school programs that use race as an admissions factor.

The justices who spoke yesterday agreed that racial integration is a laudable goal, but a narrow majority - in comments, questions and past decisions - have made clear their belief that the Constitution forbids shifting children from one school to another based on their race.


Until yesterday, civil rights lawyers had held out the faint hope that Justice Anthony M. Kennedy, a centrist, might vote to uphold local school integration plans, even though he had regularly opposed race-based affirmative action in the past.

Kennedy quickly dashed those hopes.

He told a lawyer for the Seattle school board that "outright racial balancing ... is patently unconstitutional. And that seems to be what you have here." Agreeing with Kennedy, Roberts noted that the districts were making decisions on assigning students "based on skin color and not any other factor."

No students are excluded from school because of their race, responded Michael F. Madden, the school board's lawyer. They may be assigned to a "different [but] basically a comparable school."

"How is that different from the 'separate-but-equal' argument? ... Everyone got a seat in Brown as well," Roberts said. "But because they were assigned to those seats on the basis of race, it violated equal protection."

Roberts was referring to the landmark 1954 decision in Brown v. Board of Education that rejected the separate but equal doctrine and struck down racial segregation in schools.


Madden disputed that comparison between forced segregation and voluntary integration. "Segregation is harmful" to students, but diversity and integration "have benefits" for black and white children, he said.

The conservative justices did not seem swayed.

Achieving racial diversity "is certainly an admirable goal," Justice Antonin Scalia said. But he added, "Even if the objective is OK, you cannot achieve it by any means whatsoever. ... I thought one of the absolute restrictions [in the Constitution] is that you cannot judge and classify people on the basis of their race."

David G. Savage writes for the Los Angeles Times.