Racial inequality in education — not affirmative action — should be the major theme of the U.S. Supreme Court’s decision to hear two cases regarding the use of race in the assignment of students in public schools.
Certainly, there is some legitimate concern that the Supreme Court agreed to hear these cases in order to place restrictions on affirmative action in public schools. Some fear the Supreme Court rulings in these cases could extend beyond public schools and reach affirmative action policies in higher education. This concern is based on a belief that the Supreme Court agreed to take these cases in order to review its own 2003 ruling in two University of Michigan cases that allowed colleges to use race as a factor in admitting students. With two new justices appointed to the Supreme Court by President Bush, some feel the court’s majority is now clearly unfavorable towards affirmative action.
The cases the Supreme Court has agreed to hear come from Seattle and Louisville, Ky. The main issue is whether school leaders can promote racial diversity without violating the U.S. Constitution. In both school districts, “diversity” is considered a compelling interest that can lawfully allow race-conscious tactics to achieve balances in the racial composition of the schools. These racial balances at individual schools were to reflect the racial percentages of the school district as a whole. The goal is to not allow schools to become predominately composed of one race of students.
The dispute stems from White parents who feel their children are being denied access to better performing schools simply on the basis of their race. They argue that their children should not be denied enrollment in the school of their choice due to an effort to maintain racial balances.
There is reason to believe that the Supreme Court might find distinctions between the affirmative action policy upheld in the Michigan higher education cases and the policy at issue in the Seattle and Louisville elementary and secondary public schools. Affirmative action admissions policies in the Michigan cases passed constitutional muster, in part, because applicants competed for admission individually with race used sometimes as a factor. That may not be the case with student assignments in the Seattle and Louisville cases where race may have been considered in a broad numerical scheme for purposes of achieving a racial balance. This could be a problem for the Supreme Court.
However, I do not see the Supreme Court using the Louisville and Seattle cases as a way of departing from the Michigan higher education decision. The court made clear its position on narrowly tailored uses of race in achieving diversity. In order to use the Louisville and Seattle cases to dismantle the court’s ruling in the 2003 Michigan case, the court would either have to announce a statement of narrow tailoring that is unachievable or proclaim that diversity is not a compelling interest. I doubt that either will happen.
