No sooner had the ink dried on the 2003 ruling by the U.S. Supreme Court in the contentious affirmative action case known as Grutter v. Bollinger than yet another legal ruckus over the use of race to help determine who gets into what school began wending its way toward the court.
As argued before the justices recently, the issue this time is whether two public school systems, namely in Seattle and Louisville, Ky., can base student assignments on race when voluntary choices by parents threaten the district’s desired range of racial balance.
To foster integration, the Louisville district, for example, encourages white parents to send their youngsters to academically attractive magnet programs in predominantly minority schools, while enabling black parents to enroll their children in academically strong schools outside their neighborhoods. But if the proportion of black pupils threatens to exceed 50 percent or dip below 15 percent, then youngsters may be turned down in order to keep enrollment within the desired range racially.
Some white and black parents whose children would have tipped the balance one way or the other took issue with being denied their choice of schools and sued to prevent the districts from invoking race in order to maintain racial balance in the schools.
Whatever the court ultimately decides in these cases potentially will apply to more than neighborhood schools and magnet programs. The decision could impact the burgeoning array of innovative schools, such as charter schools and academically rigorous flagship schools, which frequently are selective and highly coveted.
On the one hand the U.S. wants to be defending U.S. companies overseas and they are going to see this as vindictive, particularly in going after Apple’s profits retroactively. But in the bigger picture the U.S. is taking moves to fight inversions and improve the global system.
If precedent does not carry the day, then the justices must determine whether fostering integration constitutes a compelling state interest that justifies the consideration of race.
The Supreme Court faced virtually the same issue barely three years ago in determining whether racial diversity constitutes a similarly compelling state interest in public higher education. Writing for the court in Grutter, now-retired Justice Sandra Day O’Connor declared that it does.
Among the many justifications she cited that satisfied the criteria for a compelling state interest was that diversity promotes cross-racial understanding, helps to break down racial stereotypes and enables students to better understand people of different races.
The ruling in Grutter applied to public universities. Yet virtually all of the justifications cited in that case apply with equal force to public schools that prepare and funnel future citizens into higher education, the work force and American society.
If anything, the argument that integration and diversity constitute a compelling state interest is even more convincing in the case of public schools because a vastly broader swath of future citizens would experience the advantages of diversity.
Looking to the future, the U.S. economy will rely increasingly on minority workers, entrepreneurs and taxpayers who represent a growing segment of the population. Yet black and Latino pupils in particular are concentrated in the nation’s lowest-performing schools, with the least able teachers and the most inadequate facilities.
Surely, student assignment policies that enable them to attend good schools where they can maximize their talent and potential easily meet the test for a compelling state interest.
The court forbids quotas, outright racial balancing and fixed percentages or numbers. But as the court ruled in Grutter, race can be considered “if the rules are not applied in a mechanical way.” If the way school districts weigh race is now objectionable to justices, it is only fair for the high court to approve the fundamental objective of fostering integration and diversity, while directing the districts to devise mechanisms that do not resemble quotas. In other words, the court should resist throwing the baby out with the bathwater.