Supreme Court: Schools can't use race to assign students

Bob Egelko, San Francisco Chronicle Staff Writer

Thursday, June 28, 2007

(06-28) 10:17 PDT WASHINGTON, D.C. -- The Supreme Court dealt a severe blow to school integration efforts today, ruling that the Constitution forbids assigning students to particular schools because of their race, even when the goal is campus diversity.

The 5-4 ruling, on the last day of the 2006-07 term, came 53 years after the court unanimously outlawed racial segregation in public schools and declared that segregated schools are inherently unequal. Today's decision invoked some of the same concepts of racial equality to strike down race-conscious enrollment systems in Seattle and Louisville, Ky., similar to programs in hundreds of school districts nationwide.

"The state must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here,'' said Justice Anthony Kennedy, who cast the decisive fifth vote against the Seattle and Louisville districts.

The court's most conservative members, led by Chief Justice John Roberts, would have gone further and banned all school district efforts at racial balancing, saying they violated the principle of a "color-blind'' Constitution. Kennedy disagreed, saying racial diversity in public schools is a legitimate goal, but that it generally must be pursued by such measures as designing attendance zones or locating new schools to minimize racial isolation rather than assigning individual students on the basis of their race.

If those measures are inadequate, he said, a school may be able to justify an enrollment system that takes a student's race into account. Kennedy did not define those circumstances but said the Seattle and Louisville districts failed to meet his test.

Dissenting justices said the ruling endangered the principles of racial equality established in the landmark 1954 ruling, Brown vs. Board of Education.

"The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown,'' said Justice Stephen Breyer. "To invalidate the plans under review is to threaten the promise of Brown. The (Roberts) position, I fear, would break that promise. This is a decision that the court and the nation will come to regret.''

The ruling comes four years after the court allowed public universities to consider applicants' race as one of several factors to promote a diverse student body. The 5-4 majority in that case included Justice Sandra Day O'Connor, who retired last year and was replaced by Justice Samuel Alito, an appointee of President Bush who joined Roberts' opinion today. The court majority said today it was not questioning the 2003 ruling.

The decision affects numerous school districts that have adopted race-conscious enrollment systems to offset the effects of housing patterns and parental choice that have resulted in heavily white and minority schools even after the abolition of state-sponsored segregation.

According to a report by the Civil Rights Project at Harvard University, whites made up 58 percent of the nation's public school enrollment in 2003, but the average white student attended a school that was nearly 80 percent white. African Americans accounted for 17 percent of all students, but the average black student attended a school that was 53 percent black. Latinos made up 19 percent of enrollment but attended schools that were typically 55 percent Latino.

The impact of today's ruling on California is less clear, because state voters may have already outlawed race-based enrollment systems more than a decade ago.

Proposition 209, passed in 1996, prohibited race and sex preferences in public education, employment and contracting. The state Supreme Court has declared that the initiative bans all government classifications that treat the races differently, but has never ruled on its application to public schools.

San Francisco's new school superintendent, Carlos Garcia, said earlier this month he would like to resume the use of race as a factor in enrollment, a position shared by a majority of the school board. Students' race was considered in school assignments under a court order in effect from 1983 until 2001, when racial considerations were prohibited in a settlement of a suit by Chinese-American parents. Since then, single-race enrollment at some schools has risen above 80 percent.

Any attempt to reinstate race-based enrollment would face a legal challenge under Prop. 209 as well as the U.S. constitutional standard that the court announced today.

The ruling was a victory for groups of white parents who sued the Seattle and Louisville districts, saying their children were turned away from their preferred schools because of their race.

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