Supreme Court Gives “Flashing Yellow Light” to School Districts Interested in Student Diversity

The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education gave a “proceed with caution” signal to school districts willing to take a more vigorous and more rigorous approach to achieving racial diversity of students in each of their schools and classes. What the Court rejected was overly simple plans, based on unproved assumptions, that too easily resort to decisions based on race.

First, a word of background: I was involved in school desegregation cases as a law student and lawyer, in the 1960s and early 1970s, and saw firsthand the benefits of racial integration and equalized spending for black and white students. I have been involved in shaping and justifying race-conscious remedies in employment discrimination cases for the last 35 years, and have been involved in preparing amicus briefs for civil rights organizations in cases involving race-conscious government contracting set-asides.

In employment and in contracting, well-financed defendant employers and plaintiff contracting associations required us to jump through an ever-more complex set of hoops to justify making any decisions on the basis of race, to find creative ways of getting the job done with race-neutral means, and in the residue of cases in which nothing short of race-conscious means would work, finding ways of taking race into account that would be accepted as appropriate by the courts and, importantly, by those adversely affected. The law in these areas went through a rapidly forced evolution, and attorneys in this field had to evolve our thinking and techniques just to stay on top of the field. The result is a sophisticated approach that draws much less opposition, and can hold its own in court when challenged.

When I looked at the student assignment plans of the Seattle Schools and Jefferson County Schools, it became clear that the litigation of race-conscious admissions policies in higher education had not led to the same kind of field of education law had not gone through the same kinds of rapid evolution. These school districts’ student assignment plans were well-intentioned, but relied on race reflexively rather than thoughtfully. It did not appear from the decision that the factual predicates of the plans had ever gone through any rigorous analysis. At critical points, they seemed to be based on assumptions that were not supported by a careful development of justifications.

Decades ago, lawyers developing remedies for racial discrimination in employment and contracting used the same reflexive reliance on race, and relied on assumptions rather than careful work developing a record. Those days are long gone.

I am sure I am not the only lawyer experienced in the crucible of litigation over race-conscious remedies who cringed on seeing the Seattle and Jefferson County plans. If the standards used in employment law and contracting law were ever applied to elementary and secondary schools, these plans could not survive. Worse, the existence of such reflexive plans might trigger a judicial reflex endangering carefully-prepared plans.

We saw this play out in the Supreme Court’s decision. The majority did in fact apply to elementary and secondary schools the same kinds of standards used in employment and contracting cases. Four Justices in the majority did react strongly against the shortcomings of thought and execution so evident in the record, and voted to condemn all plans based on student diversity rather then a remedy for discrimination. One Justice in the majority, Justice Kennedy, preserved the option for carefully thought-out and carefully-executed plans based on educational diversity. It is fair to predict that the four dissenters would join Justice Kennedy in upholding such careful plans.

School districts now have a “flashing yellow” light, telling them they can proceed with caution in developing race-conscious student assignment plans if they have an adequate foundation. That means that they need to draw on the experiences with race-conscious remedies developed in employment law and contracting law. Education is no longer on a separate track; it now has to join the mainstream. Educators have also learned from the mistakes in Seattle and Louisville that a lot more homework has to be done.

Copyright © Richard T. Seymour, 2007, 2010.

Richard T. Seymour
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