Education Law - SchoolNET

Manner of Achieving Goal of Racial Diversity Limited by High Court

On June 28, 2007, the Supreme Court struck down on Equal Protection grounds two programs that sought to balance the enrollment of white and minority students across schools in the Seattle, Washington and Jefferson County, Kentucky, warning about the slippery slope of racial balancing by the state. The 5-4 decision, with Justice Kennedy concurring in the judgment but not all of the majority opinion, raises questions about the constitutionality of school assignment plans that use race as a factor.

In Seattle, the school district used race as a “tiebreaker” to assign students to their choice of high school. In Jefferson County, Kentucky, the school district used race to ensure that all non-magnet schools were at least 15% but not more than 50% black. Chief Justice Roberts, writing for the majority, held that the school districts could not show a compelling interest for classifying students based on their race or that the program was narrowly tailored to achieve that interest--the two requirements for any race-based classification by a state entity. Since neither school district at issue was legally segregated, the assignment plan could not serve as a remedy and any persistent racial separation due to housing patterns was immaterial in determining the constitutionality of the plans. Furthermore, the Chief Justice rejected the schools’ arguments that racial diversity provided a legitimate goal for the assignment plans. Although the Court had previously determined diversity to be a permissible goal, Chief Justice Roberts held that it only applied to higher education and depended on an individualized review rather than a simple white/nonwhite classification. The majority also suggested that the use of race had too little effect on the assignment of students to justify its use. Instead, the school districts should have employed other tools to encourage racial integration that did not require classifying students.

Although Justice Kennedy concurred with the majority’s decision, he disagreed with the majority as to whether diversity can be a compelling interest for school districts, arguing that the plurality was too dismissive of equal opportunity as a legitimate goal outside of higher education. Nevertheless, he found that the two plans at issue utilized too “blunt” a classification to achieve diversity and were thus unconstitutional.

In his dissent, joined by Justices Stevens, Souter, and Ginsburg, Justice Breyer argued that lingering, and even increasing, de facto segregation in these school districts warranted race-conscious programs to achieve diversity. He argued that the Court had long emphasized the local control of school districts to address problems and that these schools had already found other methods of promoting diversity to be ineffective. Moreover, he criticized the majority for not distinguishing between race-based programs that seek to exclude, such as the segregation policies struck down in Brown v. Board of Education, and programs that seek to include racial groups, such as the ones at issue.