Public school districts may not use race as the deciding factor
in assigning students to schools.
While the race of a student can be one of many characteristics
taken into consideration to achieve diversity in the student body,
it may not become the predominant criterion that determines which
students are admitted to the most popular schools in a district.
In a major 5-to-4 decision announced Thursday, the US Supreme
Court struck down race-based public school enrollment plans in
Seattle and Louisville, Ky., that were designed to maintain racially
integrated student populations. The majority justices said the plans
were unconstitutional because they relied too heavily on race in
violation of the mandate that all Americans be treated equally
regardless of skin color or ethnicity.
"What do the racial classifications at issue here do, if not
accord differential treatment on the basis of race?" asks Chief
Justice John Roberts in his majority opinion.
In announcing the ruling, Chief Justice Roberts gave public-
school administrators throughout the nation perhaps their toughest
assignment yet: Find a way to remain faithful to the promise of
racially integrated schools under the landmark 1954 decision, Brown
v. Board of Education, but do it without paying inordinate attention
to the racial or ethnic background of the students.
The decision in two consolidated cases is likely to spark legal
challenges to many affirmative-action plans and other proactive race-
conscious measures aimed at reaching out to African-Americans and
The ruling brought immediate and heated reaction.
"We're very outraged by it, and we'll fight it, as we say, by any
means necessary," says George Washington, a lawyer with the
Coalition to Defend Affirmative Action in Detroit. "It's an attempt
to end racial progress in this country. It's an attempt to freeze de
facto segregation as it now exists in this country."
Others praised the opinion. "School boards will look at this
decision and see that Seattle and Louisville failed," says Roger
Clegg, president of the Center for Equal Opportunity in Falls
Church, Va. "That, plus the fact that I think racial and ethnic
preferences are increasingly unpopular with students and parents of
all races will persuade most schools not to engage in this kind of
The 41-page decision backs away from some of the constitutional
ground staked out four years ago in June 2003, when then-Justice
Sandra Day O'Connor cast the deciding vote in a 5-to-4 decision
upholding the use of race to achieve student diversity at the
prestigious University of Michigan Law School.
Justice Anthony Kennedy wrote a dissent in that case accusing the
majority justices in the Michigan Law School decision of abandoning
the high constitutional bar that had traditionally been applied by
the court to the use of race in the context of university
admissions. Thursday's decision beefs up that constitutional
scrutiny, but Justice Kennedy declined to join the court's four
conservatives in adopting a colorblind approach in matters of school
enrollment. Such an approach would have potentially closed the door
on all race-based plans.
School officials have a compelling interest in avoiding racial
isolation and in achieving a diverse student population, Kennedy
writes in a concurring opinion. "Race may be one component of that
diversity, but other demographic factors, plus special talents and
needs, should also be considered," he says.
As in the high court's April 18 abortion decision, the shift in
its race-based enrollment jurisprudence can be linked to Justice
O'Connor's retirement from the court and her replacement by a more
conservative justice, Samuel Alito.
Both sides of the sharply divided court attempted to wrap their
arguments in references to Brown v. Board of Education.
In his majority opinion, the chief justice quoted from a second
Brown decision in 1955 as requiring government officials "to achieve
a system of determining admission to the public schools on a
nonracial basis. …