Desegregation dead? Not in this court decision: school districts still have lawful options for voluntarily integrating student populations despite popular interpretation of a Supreme Court decision.

Within an hour of the U.S. Supreme Court's release of a complex 185-page decision in June, pundits in the news media and talk show hosts of various political stripes were remarkably quick to bury voluntary racial integration plans in K-12 education as a dead animal.

These doomsday interpretations of the court's ruling in Parents Involved in Community Schools v. Seattle School District I was not accurate. The decision handed down June 28, the last day of the Supreme Court's term, does not prohibit school districts from voluntarily integrating schools as long as the school district meets certain legal requirements.

In its 5-4 decision, the Supreme Court ruled that the voluntary integration plans developed by the school districts in Seattle, Wash., and Jefferson County, Ky., violated the Equal Protection Clause of the 14th Amendment. The concurring opinion by Justice Anthony Kennedy and the dissenting opinion by Justice Stephen Breyer, which was joined by three other justices, made clear, however, that five justices (a majority of the court) found preventing the harms of racial isolation and providing the educational benefits of diverse enrollments are compelling interests and school districts may use race as a factor as long as the use is in a narrowly tailored manner to achieve these compelling interests.

In addition, in his concurrence, Justice Kennedy indicates that school districts can use race-conscious measures in a number of areas, such as siting of schools and drawing of attendance boundaries, without raising constitutional concerns.

Majority Opinion

In the majority opinion, joined by Justices Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy, Chief Justice John Roberts concluded that strict scrutiny was the proper standard for determining whether the Louisville and Seattle student assignment plans were constitutional under the Equal Protection Clause of the 14th Amendment.

Strict scrutiny requires a school district that wants to use race as part of its student assignment plan to meet a two-part test. First, a school district must articulate a compelling interest or interests. Second, it must choose a means that is narrowly tailored to achieve the interest or interests it articulates.

The chief justice stated the Supreme Court did not have to decide whether the school districts in this case had articulated compelling interests because neither plan met the narrowly tailored part of the strict scrutiny test. Chief Justice Roberts said: "The racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational benefits asserted to flow from diversity."

Further, the chief justice pointed to the limited number of students affected by the plans in both districts as evidence that racial classifications were unnecessary. He compared the impact in these cases with the fact that consideration of race more than tripled the minority enrollment at the University of Michigan's law school under the race-conscious admissions policy upheld by the Supreme Court in its 2003 decision of Grutter v. Bollinger.

The chief justice criticized the failure by school officials in Seattle and Louisville to demonstrate they had seriously considered race-neutral alternatives. Specifically, Chief Justice Roberts found Seattle had rejected alternative assignments after cursory consideration and Jefferson County presented no evidence it considered race-neutral plans.

In another part of Roberts' opinion, joined only by Justices Scalia, Alito and Thomas and not by Justice Kennedy, the chief justice went further, suggesting the school districts had not advanced compelling interests. Because only four justices joined this part of the opinion, Roberts' opinion does not establish the law on this point. These four justices suggested that concerns about "racial imbalance" or racial isolation in schools would not be an acceptable justification for race-conscious decision making: "We have many times over reaffirmed that '[r]acial balance is not to be achieved for its own sake.'"

A Concurring Voice

In a concurring opinion, Justice Kennedy disagreed with the chief justice and Justices Scalia, Alito and Thomas on the question of compelling interests. Kennedy found a compelling interest in providing the educational benefits of diverse student enrollments and a compelling interest "in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."

Kennedy called the chief justice and his three colleagues "profoundly mistaken" to the extent they "suggest ... the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools." While recognizing a color-blind Constitution as a worthy aspiration, he cautioned, in "the real world, it is regrettable to say, it cannot be a universal constitutional principle."

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While Kennedy seemed to sympathize with the goals or compelling interests of the school districts, which he said "should remind us that our highest aspirations are yet unfulfilled," he appeared to be suspicious of the ability of school districts to use race responsibly. He worried that "to make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome."

On the question of narrow tailoring, Kennedy joined the majority, but he wrote separately to explain what he found problematic with both plans. Neither plan met the requirements of narrow tailoring articulated in previous decisions of the Supreme Court, he contended. For example, he found the Seattle plan was not narrowly tailored because the district failed to explain why the binary white/ non-white classification was appropriate given the district's racial demographics and that fewer than half of Seattle's students are white.

Regarding the Louisville plan, Kennedy was troubled by what he apparently considered a lack of transparency. To meet its burden of justifying the use of racial classifications, he explained, a school district "must establish, in detail, how decisions based on an individual student's race are made in a challenged government program, and the Jefferson County Board of Education failed to meet this threshold mandate."

He offered further insight into race-conscious strategies or measures that may be permissible and may not even trigger strict scrutiny. These strategies include selecting school sites, drawing attendance boundaries, allocating programming resources, targeting recruiting and tracking important data by race as strategies. These types of strategies likely would withstand constitutional challenge and would not even trigger strict scrutiny because they do not classify individual students by race. He also suggested that an assignment plan that used race as a factor in making individual student assignment decisions might be acceptable if it met the criteria established by the court in the Grutter case.

Double Dissents

Justice Stephen Breyer, joined by Justices John Paul Stevens, David Souter and Ruth Bader Ginsberg, dissented, based on the Supreme Court's precedent in desegregation cases. Breyer found, in the past, the Supreme Court had "required, permitted and encouraged" school districts to undertake plans strikingly similar to those implemented in Seattle and Jefferson County.

He concluded the Louisville and Seattle plans were constitutional on four grounds: (1) both districts have a complex history of segregation and integration efforts; (2) precedent has allowed for voluntary integration plans; (3) both plans met strict scrutiny by serving compelling interests in a narrowly tailored way; and (4) if the Supreme Court decided otherwise, there would be "serious harm to the law and for the nation." Breyer also recognized an important distinction between what the Constitution requires school districts to do and what it permits them to do.

He was concerned about the consequences of the court's decision, fearing that districts will be forced to return to ineffective race-neutral plans. He noted that in the hundreds of districts nationwide that use some form of race-conscious assignment plans, "the contentious force of legal challenges ... would displace earlier calm."

Breyer cautioned that in a time when many parents want their children to attend integrated schools, the majority had just removed one of the most effective means of achieving that end. Finally, he invoked the promise of Brown that America might one day be "one nation, one people, not simply as a matter of legal principle but in terms of how we actually live."

He added: "[T]o invalidate the plans under review is to threaten the promise of Brown. The position of the chief justice and his allies on this case "would break that promise," Breyer said in his lengthy and impassioned statement from the bench explaining his dissent.

Justice Stevens joined in Breyer's opinion, but he also wrote a separate dissenting opinion. In the latter, Stevens noted the "cruel irony in the chief justice's reliance on our decision in Brown v. Board of Education." He added the chief justice's opinion "rewrites the history of one of this court's most important decisions" by rejecting the important distinction between invidious racial classifications and those that do not burden a single group or stigmatize--a distinction well-supported by precedent.

Finally, Stevens proclaimed his "firm conviction that no member of the court [he] joined in 1975 would have agreed with today's decision."

Immediate Effects

During the eight weeks following the court's ruling in Parents Involved in Community Schools v. Seattle School District No. 1, school districts have been considering the implications of the Supreme Court rulings, and they are reviewing their policies and practices. In addition, two courts have been asked to review plans in light of the decision.

The first case involves the Jefferson County case on remand from the Supreme Court's June 28 decision. In that case, the district court held a hearing on Aug. 2 and issued an order the following day. During the hearing, the Jefferson County Public Schools made clear it would not use race in assigning any individual students who are new to the district since assignments were first made in spring 2007 and in approving any new transfers.

In its order, the district court stated: "[Biased upon the school board's current expressed intentions, [the Jefferson County Board of Education] was in compliance with the Supreme Court's ruling."

During the hearing, counsel for the Jefferson County school board said the district intended to take approximately two years to develop a new plan for implementation in 2009-10. In addition, because the district is "no longer implementing the assignment of individual students on the basis of race, but [is] continuing to use only race-neutral and race-conscious methods, then [the district] could be in compliance and that [the district] could have that additional time in order to decide what the new plan might be."

In response, the court stated: "[I]f we are correct, you can have until the end of time to decide what a new plan is because you don't have to have a new plan."

In the second case, the plaintiffs in Comfort v. Lynn School Committee, have filed a motion arguing the Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District I required the district court to set aside its 2003 decision holding the Lynn School Committee's voluntary integration constitutional. The defendants (the Lynn School Committee and City of Lynn) and the defendant interveners (the Commonwealth of Massachusetts) argued that the plaintiff's motion provided no grounds for re-opening the litigation because the Lynn plan had been found constitutional by the district court in 2003 and had been affirmed by the Court of Appeals on July 15, 2005. The motion is pending before the district court, but it is unclear when the district court might rule on the motion.

A Divided Court

The opinions in Parents Involved in Community Schools v. Seattle School District No. 1 reveal a Supreme Court deeply divided over voluntary integration in public school districts. One important victory emerged in the case in that five justices recognize compelling interests in preventing racial isolation and promoting a diverse student population in the K-12 context.

In addition, Justice Kennedy's opinion provides important guidance for measures that do not make individual decisions based on a student's race, such as drawing of attendance boundaries and siting schools, and signals that such measures will withstand constitutional scrutiny. His opinion also suggests, where necessary, race may play a factor in carefully designed plans that consider several factors in making individualized student-assignment decisions.

At the same time, however, the majority's determination that the plans used in Seattle and Louisville were not narrowly tailored and failed strict scrutiny means that school districts that currently use the race of students as a factor in individual assignment determinations should carefully examine their student assignment plans in light of the court's various opinions.

While the majority opinion makes clear the precise measures used by Seattle and Louisville are not permissible, Kennedy and four other members of the court leave the door open to some more narrowly tailored plan based on the compelling interests of avoiding the harms of racial isolation and providing for the educational benefits of diverse enrollments.

Maree Sneed is an attorney with Hogan and Hartson, 555 13th St., N.W., Washington, DC 20004. E-mail: [e-mail]. The author acknowledges the help of Audrey Anderson, John Borkowski and Ambia Harper.