Panelists parse Supreme Court rulings on school integration

September 7, 2007Duke Law News

Sept. 7, 2007 – Two panel discussions at Duke Law School on Sept.5-6 probed the legal and policy implications, respectively, of the Supreme Court’s recent rulings on school integration.

In its final ruling of the 2006 term in Parents Involved in Community Schools v. Seattle School District No. 1, the Court held unconstitutional the voluntary public school integration plans of Louisville, Kentucky, and Seattle, Washington. The justices split 4-1-4 in deciding whether school districts may use race as a factor in assigning students to public schools in order to achieve racial integration that reflects districts’ overall student populations.

Four justices, in an opinion authored by Chief Justice John Roberts, endorsed a broad prohibition of any use of race in student assignment, while another four, in a dissenting opinion written by Justice Stephen Breyer, would have upheld the plans. Justice Anthony Kennedy, in a separate opinion, joined the majority in striking down the plans in question, but held that achieving “diverse” student populations—including racially diverse populations—represents a compelling state interest, and endorsed specific methods local communities might employ to achieve that end.

Interpreting a split decision
To panelist Roger Clegg of The Center for Equal Opportunity, the decision represented a clear victory for opponents of the plans. “We won. The school systems’ use of race and ethnicity was struck down as unconstitutional,” he said.

Hogan & Hartson partner Audrey Anderson, who argued the case in the Supreme Court on behalf of the Seattle School Board, disagreed with Clegg as to the extent to which Justice Kennedy joined the majority opinion which, she said, was “very narrow.”

“When you look at the things Justice Kennedy was not willing to go along with, it becomes much more nuanced, and it becomes much harder to say that we completely lost this case,” she said, reading sections of his opinion to make her point. Not only did he find a compelling state interest in a diverse student body, but he expressed concern that the plurality “was ‘at least open to the opinion that the Constitution requires school districts to ignore de facto segregation in schooling,’” and “‘profoundly mistaken’ in suggesting that the Constitution requires state and local authorities must accept the status quo of racial isolation in schools.’”

“So the legal implications are that on the Supreme Court, at least right now, there are five votes that support a compelling interest,” in racially integrated schools, said Anderson.

Professor Neil Siegel agreed that Justice Kennedy’s opinion “is the law now.” It was significant that the justice mentioned specifically that communities can designate race-conscious attendance zones, site schools, and engage in targeted faculty and student recruitment, all with race in mind, said Siegel. “These are hardly race-neutral alternatives when the effect of using them is race,” Siegel observed.

Policy approaches in light of Parents Involved
Although Justice Kennedy “clearly sanctioned” certain race-conscious “non-individualized” approaches to school assignment, school districts will have to establish careful records regarding their consideration or adoption of a particular plan as they move forward, said Sept. 6 panelist, Jennifer Stillerman of Hogan & Hartson. “It is too early to tell what kinds of race-conscious individualized tools might be allowable.”

Other panelists offered inside looks at how some alternatives to race-based school assignment plans are actually working. Anticipating increasing judicial restrictions on race-based plans, the Wake County school system, North Carolina’s largest, abandoned a highly successful race-based policy in 1999 in favor of one that seeks to achieve socioeconomic balance in its schools, explained Ann Majestic ’82. School officials decided that it was crucial that no particular school “have too much challenge,” in terms of poverty, said Majestic, who represents Wake and many other school divisions in the state through her firm, Tharrington Smith. “That makes it harder to be successful, classroom by classroom.” Wake’s current policy mandates that no more than 40 percent of a school’s student body can be eligible for free and reduced lunch, and no more than 25 percent of the student body can perform below grade level on standardized end-of-grade tests, she said.

To date, Wake County has maintained the political will to resist the trend of adopting school choice policies, Majestic said. But support for giving parents more power to choose the school that their children will attend – through magnet and charter schools, transfers, or other school choice programs – is strong and growing throughout the country, said Professor Helen Ladd of the Terry Sanford Institute of Public Policy. While advocates often say that school choice programs can and will decrease school segregation, empirical studies suggest otherwise, she said.

Sharing data from her collaborative study on the effect of choice on Durham County “choice” magnet, charter, and year-round elementary and middle schools, Ladd said the opposite is true. “Durham’s school choice program increased the isolation of black students, Hispanic students and white students, and concomitantly decreased the exposure of black and Hispanic students to white students,” she said. “Advocates of more racially integrated schools should not turn to choice programs in this new legal environment as a way to achieve racial integration. Indeed, we predict that the movement toward more choice is likely to increase racial segregation and in addition, it will increase segregation by class.”

Professor of Public Policy and Law Charles Clotfelter who has studied the steady overall rise of school segregation in North Carolina since 1995 along with Duke colleagues Ladd and Jacob Vigdor, offered a statistical look at the effect of the school choice plan adopted in the Charlotte-Mecklenberg school system, “which guarantees that white or black parents’ kids could go to neighborhood schools with no bussing.” Since 2001, when the plan was adopted, the percentage of students attending schools that are 90-100 percent black, has increased from 6.9 percent to 34.1 percent.

The student-organized events on Sept. 5-6 were sponsored by the American Constitution Society, the Federalist Society, the Education, Law & Policy Society, Hogan & Hartson, and the Program in Public Law.