So now what? Race could be out as a factor in assigning students to public schools, the U.S. Supreme Court ruled Thursday, leaving educators to ponder less reliable alternatives for creating racially diverse classrooms. School districts can still place students according to family income, academic achievement or even neighborhood poverty ratesall assumed to bear at least some correlation with race. But where that's been tried, it has rarely resulted in integrated schools. And to the extent these alternatives are meant as proxies for race, they could still be vulnerable to constitutional attack.
Today's decision was remarkably close. It came in the cases of two public school districts one in Seattle and the other in a region of Kentucky including Louisville that considered students' race as just one factor in deciding where they should go to school. Both districts wanted to maintain integrated classrooms, and like hundreds of districts across the nation, they used race to periodically tweak the makeup of schools that were oversubscribed or racially out of whack in systems that otherwise let parents choose where their children attended class.
By a 5 to 4 vote, the court struck down the districts' plans. Three justices joined Chief Justice John Roberts' opinion saying that, in schools not intentionally segregated, the desire for racial balance isn't enough to trump the Constitution's general ban on treating people differently because of their race. Justice Anthony "Swing Vote" Kennedy agreed with the striking-down bit, but he wrote a separate opinion saying schools could consider race as a factor if they did so in ways precisely gauged to achieve diversity. The districts' plans were too crude Seattle had only two categories: white and non-white and too ambiguous to pass that test, Kennedy wrote. And because he supplied the fifth vote, he speaks for the court on the narrow point that a plan accounting for race might still pass constitutional muster.
Justice Stephen Breyer led Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg in dissent, arguing that the districts' use of race served their powerful interest in making sure that students reaped the benefits of learning in racially diverse classrooms. And what about Brown v. Board of Education, Breyer asked incredulously? The 1954 school-desegregation landmark promised "true racial equality," he wrote, and today's plurality decision "would break that promise."
Breyer seems way too pessimistic. Kennedy's concurrence suggests that schools might figure out an acceptable way to use race in assigning students, and there are apparently five firm votes on this court for allowing race as a factor in creating good public schools. What's more, the decision did not overrule Grutter v. Bollinger, the court's 2003 decision upholding the University of Michigan law school's admissions policy of considering race because students learn better in diverse classrooms.
For the moment, though, hundreds of public school districts may have to consider alternatives for getting a racial mix in classrooms, and their options are limited.
An obvious one is just to let parents choose their children's school. That's actually the system in almost every one of the nation's school districts, according to Michal Kurlaender, an assistant professor of education at the University of California, Davis. The differences come in how students are assigned when too many select a certain school or, as in Louisville, a school falls out of a predetermined racial balance. The Louisville goal was no less than 15% and no more than 50% minority students in any single school.
The parents who successfully challenged the Seattle plan favored a pure choice approach, with a lottery to handle assignments at oversubscribed schools. They say Seattle's high schools are already racially diverse (Chief Justice Roberts seems to agree), and that the city's overall diversity will keep them that way. "Sixty percent of students are minority, and 80 percent of them want to go to the top five schools," says the parents' lawyer, Harry Korrell. "So you're going to get a heavy minority representation no matter what." The district, though, argues that segregation in the city's neighborhoods will soon be reflected in the high schools now that race isn't a factor in assigning students. Whether or not the district's right, that's what happened in many other cities, leaving schools to find alternatives for maintaining diversity.