Copyright© 2007 by School Services of California, Inc.

                                      Volume 20                   For Publication Date: July 6, 2007             No. 15

Supreme Court Leaves Higher Education Affirmative Action Intact 

While public school desegregation plans were dealt a blow this week when the U.S. Supreme Court issued a 5-4 ruling against voluntary integration plans in K-12 public school districts in Louisville, Kentucky, and Seattle, Washington, that use race as a factor to prevent segregation in student assignments, the court left intact affirmative action in higher education. 

According to Diversity Magazine, “In a fiery 185-page opinion with caustic attacks on each other, the justices reversed lower rulings that upheld the schools’ plans, declaring racial classifications in student assignments to be inherently unconstitutional.” Yet the court’s decision did not change the law governing colleges’ use of race in admissions. According to the Chronicle of Higher Education, “it mainly just reaffirmed that colleges must seriously consider race-neutral alternatives, must not put too much weight on race or ethnicity, and must show that such policies have educational benefits.” 

The majority opinion of the court was based on the interpretation that the plans weren’t narrowly tailored enough, a legal concept implemented by the 2003 case that upheld affirmative action at the University of Michigan Law School that justified the use of race as a factor in school admissions. 

This week’s Supreme Court decision will have an effect on K-12 school districts implementing desegregation programs nationwide. There are current cases in California, such as the Los Angeles Unified School District (LAUSD), which finds itself in the position of defending programs created to increase diversity in a pending lawsuit, Civil Rights Foundation vs. LAUSD. 

The case focuses on the plaintiff’s claim that the school district’s magnet schools and Permits with Transportation (PWT) programs violate Proposition 209. The American Civil Rights foundation is an organization affiliated with Proposition 209 proponent Ward Connerly. 

Connerly agues that LAUSD illegally uses race to determine the make-up of magnet and PWT programs. Both programs were created in 1977 as a part of a 1976 desegregation order issued by the California Supreme Court. LAUSD views both programs as voluntary integration plans and is defending both programs as necessary to prepare students to live and work in a global economy.  

In response to the decision, a number of groups, including parents, teachers, the Coalition for Educational Justice, the ACLU of Southern California, NAACP Legal Defense and Educational Fund, Inc. (LDF), Asian Pacific American Legal Center, the Mexican American Legal Defense and Educational Fund, Public Counsel, and the law firm Hadsell & Stormer, filed court motions to maintain the Magnet and PWT programs at LAUSD. 

A similar suit in 2006 against the Capistrano Unified School District was defeated and allowed the school district to continue considering race when redrawing school attendance boundaries. 

Capistrano Unified School District parents responding to the victory explained, “We have experienced the benefits of racial and ethnic diversity.” According to legal counsel and the National Association for the Advancement of Colored People (NAACP), the ruling and settlement “affirms the importance of integration in public schools and the ability of school districts to take steps to avoid racially isolated schools. The combined effect of the judge’s ruling and the settlement means racial and ethnic integration can remain a core principle in the district.”  

According to Ada Meloy, of the American Council on Education the court’s ruling “recognizes the interest in diversity that exists in higher education and has a special niche in our Constitutional tradition.  At the same time, however, it also makes clear that colleges need to make sure their consideration of race and ethnicity is narrowly tailored to advancing their educational missions.”  

The Supreme Court decision is not expected to have an impact on higher education desegregation plans.

                                                                                  —Jamillah Moore, Ed.D. and Angelo Williams