Race, Education and High Court

June 22, 2006

By William L. Bainbridge

Recent opinions of the United States Supreme Court affecting elementary, secondary and higher education have been greatly impacted by former Chief Justice William H. Rehnquist and former Associate Justice Sandra Day O'Connor, the frequent primary authors of majority opinions.

In the absence of Justices O'Connor, who retired upon the confirmation of her successor, and Rehnquist, who passed away last September, educators, parents, students and lawmakers are anticipating a new role of the high court in education.

There is a great deal of speculation about the impact of President George W. Bush's two appointees, Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts, Jr., and what effect their views will have upon our schools, colleges and universities.

Perhaps the greatest area of interest involves issues of race. The court is poised to revisit at least two significant higher education affirmative action decisions. In Gratz v. Bollinger and Grutter v. Bollinger, the court considered policies for both law school and undergraduate admissions at the University of Michigan. The issue involved the constitutionality of considering race in college admissions. In general, the 2003 rulings upheld some race-based affirmative action, but ruled unconstitutional several aspects of the University's admission practices and policies.

In Gratz, the high court at the time upheld the allegation of applicant Jennifer Gratzclaiming she was unjustly denied undergraduate admission because she is white. In Grutter the court, with Rehnquist and O'Connor still participating, upheld the affirmative action admissions policy of the law school at Michigan. Many speculate these decisions could have gone the other way if Roberts and Alito were then wearing the long black robes.

It has already been announced the high court will also weigh race as a factor in assigning students to K-12 public schools. This time Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson City Board of Education will focus on public school placements.

Both cases allege that these public school systems discriminate based on the color of one's skin. This would be the first time the court has ever considered how diversity affects our nation's 13,629 operating public school systems.

In the Jefferson County, Kentucky case a plan is being challenged that strives to ensure an African-American enrollment of at least 15 percent, and no more than 50 percent, at each of the system's schools without individual placement review of any student.

In Seattle, white parents are in court to challenge the school system's assignment policy for secondary schools that allows entering high school students to select any of 10 high schools. If a student's primary choice is not available, the administration uses a variety of factors to make the assignment, including whether the student will help bring racial balance to a school. Noteworthy, the Seattle plan was just upheld last October by a 7-4 majority of the full 9th Circuit Court of Appeals.

Importantly, the high court's decision to consider these two cases surprised many since all three federal appeals courts that ruled since 2003 sided with the school systems. Normally, it has been past practice for the high court to generally intervene to settle lower-court conflicts. Late last year, prior to Justice Alito replacing Justice Connor (who wrote the 2003 opinion), the court declined to hear a similar challenge to a race-conscious plan by a parent in Massachusetts.

The next session of the court, beginning in October, could end the practice of school leaders using race as a factor to decide where children go to school. Policies of universities that consider race in admission decisions may also be affected.

These lawsuits are part of a series of challenges to the prior rulings on the use of race in student placement or college admission, one of the country's most contentious issues. Many knowledgeable advocates of affirmative action and desegregation believe the two new justices are ready to plow new ground in the area of racial preferences.