Another Supreme Test? A High Court Decision Striking Down Race in K-12 Admissions Could Jeopardize Race-Conscious Policies in Higher Education

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The decision by the U.S. Supreme Court to hear arguments in two K-12 school assignment cases in its next term has raised serious questions about the viability of race-conscious policies in American education, legal experts say.

Just three years after the court upheld race-conscious admission policies in higher education in the Grutter v. Bollinger ruling, the new cases will test whether that precedent applies to public elementary and secondary education. As the court decides whether policies that foster racial and ethnic diversity in public K-12 schools are worthy of constitutional protection, observers say it's possible that the Justices could render a decision that would either invalidate or open the door to the eventual elimination of race-conscious affirmative action in U.S. higher education.

"I think people thought the challenge [to higher education affirmative action] was going to rest for awhile," says R. Richard Banks, a Stanford University law professor and an expert on race and law.

The two cases involve school systems in Louisville, Ky., and Seattle, Wash., which allowed school officials to consider race in how they assigned students to schools. In both cases, the parents of White students sued the school districts when their children were refused admission into popular area schools.

Legal observers say it came as a surprise that the court, which gained two new members in the past year, accepted the two cases despite the fact that, in both cases, the federal appellate courts had sided with the school districts in their use of race as a factor in school assignments. The tendency of the court is to take on cases where there have been different rulings by the lower courts, and the Justices intervene as a move to resolve those differences.

Following the court's decision to hear the school cases, pro-school integration activists and scholars expressed dismay that the court had decided to intervene and not allow the lower court decisions to stand.

"Here we are 52 years after the Supreme Court told us that separate and unequal education could not be the case, and as we stand here in 2006, the Supreme Court has agreed to hear two major cases that could set the clock back for African-Americans more than half a century," said Harvard University law school professor Charles Ogletree, according to the Chicago Sun-Times.

Scholars and activists have pointed to the appointments of Chief Justice John Roberts and Justice Samuel Alito as the likely basis for the court's decision to take on the school assignment cases. The two newest Justices, both conservatives appointed by President Bush in the past year, took critical stances on affirmative action during stints as attorneys in the Reagan administration. …