The Magazine

Down but Not Out

The Supreme Court doesn't quite kill off racial preferences.

Jul 23, 2007, Vol. 12, No. 42 • By ERIN SHELEY
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In March 1999, Samantha Comfort of Lynn, Massachusetts, tried to enroll her daughter Elizabeth at the only Lynn public school close enough to her job that she could pick the kindergartner up on time each day. The school refused to take Elizabeth--not because it didn't have space for another child, but because it didn't have space for another white child. Enraged, Comfort and a group of other parents brought a constitutional equal protection claim against the Lynn School Committee, which prohibits "segregative" transfers of students between schools (i.e., transfers that would bring the percentage of "nonwhite" students in each school outside the targeted range of 43 percent to 73 percent). In 2005, a federal appeals court rejected their claim and upheld the school district's racial plan. Two weeks ago, the parents went to court again, filing what could be the first of many challenges to similar court rulings in light of the Supreme Court's recent rejection of race-based student assignment plans in Parents Involved in Community Schools v. Seattle School District No. 1 et al.

Because the Seattle and Louisville school districts considered by the Court also used rigid percentage systems, it's a safe bet that Parents Involved will indeed bring an end to overtly race-based policies like those in Lynn. Yet the case cannot be read as mandating the absolute race neutrality sought by Fourteenth Amendment literalists (much less has it, as the NAACP homepage wails mixed-metaphorically, "condemned minority children to a back seat in the race for life's chances"). The extent to which school districts may racially classify their students going forward depends, first, on the manipulation of loopholes left open by the Court's opinion and, second, on the deciding vote of Justice Kennedy, who stated separately that he believes it "cannot be a universal constitutional principle" that "our Constitution is color-blind."

Any use of racial classification by a governmental body is subject to "strict scrutiny" by courts under the Fourteenth Amendment--it must be "narrowly tailored" to serve a "compelling state interest." Chief Justice John Roberts was joined by Justices Scalia, Thomas, and Alito in holding that the goal of racial balancing in and of itself, even under the warm, fuzzy name of "diversity," can never constitute such a compelling state interest. Yet, critically, Roberts's opinion defined "racial balancing" against the backdrop of the Court's 2003 decision in Grutter v. Bollinger, which upheld the University of Michigan Law School's use of race as a factor in admissions. Grutter, written by now-retired Justice Sandra Day O'Connor, turned on the fact that the law school--rather than employing specific racial quotas--evaluated each applicant with an eye to "producing classes both diverse and academically outstanding," taking into account the school's commitment to racial diversity as one of a number of factors affecting each admissions decision.

While the Court noted that the compelling state interest at issue in Grutter was student body diversity specifically in the context of higher education, Roberts's opinion does not foreclose the possibility that a University of Michigan-style balancing test could be acceptable at an elementary or secondary school level. He noted, "The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity." In contrast, in the Seattle and Louisville plans, race was, for certain students, "determinative standing alone." It is therefore an open question whether a school district could make use of nondeterminative racial classifications without running afoul of Parents Involved.

Furthermore, Justice Kennedy, whose concurring vote was critical to the 5-4 majority, made it clear that he disagreed with Roberts that targeted racial composition could never be a sufficiently compelling state interest to pass Fourteenth Amendment muster. Specifically, he endorsed "a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component," in a manner "informed by Grutter."

What does this mean? School districts wishing to avoid running afoul of Parents Involved have a wide range of options. The first--and worst--is simply to accept the invitation of Justice Kennedy to promulgate a formal, individuated policy for making student transfer decisions and, behind that smokescreen, to proceed on racial grounds exactly as before.