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Sheff Attorney Dennis Parker Reflects on Supreme Court’s Recent Desegregation Ruling

Thursday June 28, 2007

The impact of the recent Supreme Court decision finding the voluntary school desegregation plans in use in Seattle, Washington and Louisville, Kentucky unconstitutional is a mixed one. For those concerned about the trend toward the resegregation of American schools, the Court’s decision striking down two moderate plans which considered race as a last resort was extremely disappointing.

Although it is true that the decision will require a re-examination of a range of voluntary school-desegregation plans, it still does not represent a death knell for voluntary school desegregation. Four of the Justices (Roberts, Scalia, Alito and Thomas) not only felt that the plans improperly considered race in elementary and secondary school assignments but joined in a plurality opinion which would have made it virtually impossible to consider race at all in school assignments. Four Justices (Breyer, Ginsburg, Stevens and Souter) joined in a dissenting opinion, which would have found that diversity was a legitimate goal for school districts and believed that the two plans properly considered race in reaching that goal.

Most significant for the future of voluntary school desegregation was the concurring opinion of Justice Kennedy. Kennedy agreed with the plurality opinion that the particular plans before the court were unconstitutional. As a result, plans like those in Louisville and Seattle, which used race as the deciding factor in student assignment cases for individual students, are extremely vulnerable to legal challenge.

At the same time, Justice Kennedy took pains to emphasize that he believed the plurality opinion went too far by stating that an interest in desegregating schools did not provide a compelling interest that would justify further action by a school district. Instead, Kennedy observed that the notion that “state and local school authorities must accept the status quo of racial isolation in schools is profoundly mistaken.” In fact, Justice Kennedy recognized that integration is not only an important goal but is a compelling goal. Therefore, his disapproval of the Seattle/Louisville plans was not based on a belief that their goal of desegregating schools was improper but that they went too far, in his opinion, in using race to accomplish that goal. In that sense, Kennedy’s opinion is a compromise one which agrees with the plurality that the plans should be struck down and agrees with the dissent that integrated schools are a proper, compelling interest.

What this means in terms of providing guidance for other school districts is that they can take steps to address segregation in schools but that those steps must be measured ones. Justice Kennedy lists a number of steps, which he believed would be acceptable. These include careful consideration of school siting, re-drawing attendance zone lines, targeted recruiting of students, careful use of magnet schools, use of socio-economic status and other means of carrying out the goal of desegregating schools. Interestingly, Kennedy felt that using these tools for the admittedly racial reason of integration would not be invalid. Instead, he appears to find them more acceptable because they could address racial isolation while not subjecting individual students to being denied admission to a particular school because of that student’s race. Finally, Kennedy suggests the possibility that more explicit use of race might be possible if these other measures failed to reduce racial isolation. (See FN1)

Because of the breakdown of the nine votes in the decision with Kennedy agreeing with four justices about the legality of the Seattle/Louisville plans and with four other justices about the legality of integration as a compelling governmental interest, Kennedy’s opinion represents the closest thing to a holding in the case and provides the greatest level of guidance for the standards by which future voluntary school desegregation measures will be judged.

The growing level of segregation and the clear benefits associated with diversity in elementary and secondary education counsels a careful approach to the question of desegregation. Abandoning steps to prevent racially isolated schools is not required by the recent decision. Indeed, a careful reading of the decisions of a majority of the justices demonstrate that school districts which do not seek to address questions of integration would be abrogating their responsibility as educators.

Written by Dennis D. Parker, Legal Counsel for Sheff
Dennis D. Parker
Director, Racial Justice Program
ACLU
125 Broad Street
New York, NY 10004

FN1: The remedies suggested by Justice Kennedy are very similar to the ones relied upon in the Sheff settlements. For this reason, and because, unlike the Seattle/Louisville cases, Sheff is a court-ordered remedial case and not a voluntary one, the decision should have no impact on the remedial efforts in use in that case.