The Door to Diversity Remains Open

Cross posted at The State of Opportunity - a blog about human rights and the American Dream.  Written by Robert Watts.

The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds -- Justice Anthony Kennedy

The good news is that five members of the U.S. Supreme Court have affirmed that there is a compelling government interest in creating diverse public schools.  It's now up to parents, community leaders, members of Congress and supporters of diversity to figure out how to redesign, rethink and tweak programs aimed at creating diverse classes and schools.

Today's Supreme Court decision striking down integration plans in Seattle, Washington and Louisville, Kentucky was surely disappointing.  But the ruling does not close the door to diversity or considerations of race.

That's in large part because Justice Anthony Kennedy, though critical of the Seattle and Louisville systems, affirmed a compelling government interest in achieving public school diversity. In this way, Justice Kennedy joined the dissenters to the ruling, Justices Breyer, Stevens, Souter and Ginsburg.

This is the important starting point as school officials and community leaders begin thinking about how to design diversity programs to comply with Justice Kennedy's controlling opinion. Indeed Justice Kennedy went out of his way to separate his views from those of his four conservative colleagues. He writes,

The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

Kennedy identified a number of tools and methods that school systems could use to achieve diversity, among them magnet school plans, race-sensitive site selection for new schools and race sensitive drawing of attendance lines. Tracking of faculty members by race and test scores by race is also acceptable, Kennedy made clear in his opinion.

Indeed Kennedy presents something of an exhortation near the end of his opinion when he writes,

Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face...

In the weeks to come, school officials, legal experts and others must take Kennedy up on this challenge.  They must begin that process of redesigning and tweaking diversity plans to comply with the standards laid out in Justice Kennedy's opinion.

One issue school systems will likely have to address is the need to broaden the terms of diversity. Justice Kennedy seemed to take particular offense at the way the Seattle and the Louisville schools seemed to place students in either of two categories: white or black (or other).

The other good news in today's ruling--in addition to the endorsement of diversity by five members--is that the court affirmed the Grutter decision endorsing diversity in higher education.  Some had feared that in invalidating the Seattle and Louisville plans the high court would have mounted a full-scale attack on diversity.  Supporters of diversity can put aside that fear for now.

Of course, today's ruling was disappointing in many ways. The four-member conservative bloc on the court, including the two justices appointed by President Bush--Chief Justice Roberts and Associate Justice Samuel Alito--came close to ending the embrace of diversity that has emerged as part of the country's longstanding struggle over racial equality.

Neither Louisville nor Seattle was under court order to create diverse schools.  Rather school officials and community leaders in each locale decided that diversity was a key education objective that would well serve students of all backgrounds.  The fact that local school systems would decide on their own to embrace diversity is one of the great success stories of race relations in recent decades. And it was these sensible voluntary efforts that the conservative bloc wanted to thwart.

The court's rejection of the Louisville plan is particularly disheartening for how it fails to acknowledge the long and hard path traveled by that community in the past 30 years. In 1975, a court-ordered busing plan led to all manner of racial unrest and turmoil.  To get a sense of the tensions and turmoil of that time, you can view the following photos from the Louisville Courier-Journal.

But Louisville, like communities across the country, began to change and over time tensions eased and support for integrated schools grew.  So much so that when the school system was released from court supervision in 2000, community leaders were determined to maintain integrated classes.  Thus the school board came up with its flexible plan to create schools with a racial balance roughly mirroring that of the school district as a whole.

Louisville officials said today in a statement that any changes to their assignment plan will reflect the district's continuing support for diversity.

The four-member conservative bloc of Chief Justice Roberts and Associate Justices Thomas, Scalia and Alito engaged in a major misreading of our national history.  These members came perilously close to equating the Seattle and Louisville diversity efforts with the nasty regime of Jim Crow segregation.

The majority opinion drew a lengthy and persuasive rebuttal from Justice Stephen Breyer in his dissent.  Towards the end of his dissent, Breyer eloquently describes the long journey the nation has been on towards racial equality and the stunning changes that have come about in race relations.

Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities    and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.


Well said. Community leaders, school officials and parents who embrace diversity have a lot of public support on their side. Despite this ruling, we can still ensure that the opportunity to bring Americans together to create a tolerant pluralist society remains more than a dream.

For more information and resources on today's decision, visit The Opportunity Agenda.

Tags: Diversity, Education, integration, Opportunity, race, SCOTUS, Supreme Court (all tags)

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