Supreme Court Oral Argument

On December 4, 2006, the United States Supreme Court heard oral argument in Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915. These cases present the question of the extent to which the Equal Protection Clause of the Fourteenth Amendment permits a school district to use race-conscious measures in student assignment plans to promote the educational benefits associated with racial diversity. This memorandum provides a brief summary of the oral arguments.

Background of the Cases

The student assignment plans at issue in these cases both have a long history stretching back to the early days of school desegregation. No court ever found that Seattle School District No. 1 (“Seattle”) was de jure segregated, but before the school district began its desegregation efforts, the city’s schools mirrored the city’s segregated housing patterns and were highly racially identifiable. Even today, Seattle’s residential neighborhoods remain at least de facto segregated, with 67% of white students living in the northern half of the city and 75% of non-white students living in the southern half. In the late 1970s, under threat of litigation from civil rights groups and the federal government, the district implemented the Seattle Plan, an aggressive voluntary desegregation policy that included mandatory assignments and relied heavily on cross-town busing. The Seattle Plan made tremendous progress toward the district’s integration goals, but it did so at the expense of other priorities, including parental choice and neighborhood schools. Since the 1980s, therefore, Seattle has consistently moved toward less intrusive integration measures that promote diversity but also give weight to other criteria that are important to parents.

The plan at issue in the Seattle case was last used during the 2001-02 school year. Under the plan, entering ninth grade students were asked to rank their top three choices among Seattle’s ten high schools. If there were more students who wanted to attend a school than there were spaces available at that school, then the district applied a series of “tiebreakers.” The first tiebreaker gave preference to students with siblings enrolled in that school. The second was based on how close the student lived to the school, unless the school’s racial composition differed from the district average by more than 15 percentage points, in which case race was used as a tiebreaker to promote diversity.

In 2001, Parents Involved in Community Schools (“PICS”), an organization comprised of parents concerned about the use of race in the district’s over-subscribed schools, sued the Seattle School District, claiming that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment. In 2005, the Ninth Circuit en banc, applying strict scrutiny, upheld the constitutionality of Seattle’s plan. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 426 F.3d 1162 (9th Cir. 2005). The Ninth Circuit found that seeking the social and educational benefits of racial and ethnic diversity and combating racial isolation were both compelling interests in the K-12 setting and that the approach taken in Seattle was narrowly tailored to address those compelling interests.

The Jefferson County case presents a different factual scenario. Unlike in Seattle, the schools in Jefferson County were once found to have been segregated by law, and the school district initially resisted its obligation to desegregate under Brown v. Board of Education, 347 U.S. 483 (1954). From 1975 until 2000, Jefferson County Public Schools thus operated under a federal court-ordered desegregation decree. Over the course of that 25 year period, however, the school district ultimately embraced the goals of the court order and concluded that integrated schools provide great benefits to its students and the entire community. As a result, when the district was declared unitary in 2000, it decided to continue many of the student assignment practices that had been required under the desegregation decree. Jefferson County is somewhat unusual among the nation’s largest school districts in that it has maintained an enrollment that is 34% black and 66% non-black, with white students making up most of the non-black group.

Many of the integration practices from the Jefferson County court-ordered plan are included in the voluntary plan at issue in this case. Under the voluntary plan, students are initially assigned to a school based on where they live, called their “resides” school. In addition, elementary schools are grouped into clusters, and students can choose to attend another school in their cluster. After being assigned to a school, students may request a transfer to any Jefferson County school, including magnet schools and magnet and optional programs. Middle and high school students who do not request a transfer are assigned to their “resides” school. Elementary school students who do not request a transfer are assigned to their “resides” school or another school in their cluster. Transfer requests are considered based on available space in the requested school, any applicable criteria of the school or program, and the district’s racial guidelines, which require every school to seek black student enrollment between 15% and 50%. The plan allows most students to attend the school of their choosing and preserves neighborhood schools, while at the same time avoiding extreme racial isolation and promoting choice. The plan has the support of a substantial majority of parents in Jefferson County.

In 2002, Crystal Meredith and other plaintiffs, on behalf of their children, sued the Jefferson County Board of Education, challenging various aspects of the assignment plan. The other plaintiffs challenged the assignment process for a specific type of magnet program, called traditional schools. Only Meredith challenged the plan as it applied to assignment to neighborhood schools, and her son was only affected by the part of the plan governing transfer requests.

In 2004, a federal district court found that promoting diversity and ameliorating racial isolation were compelling interests and that, in general, the Jefferson County plan was narrowly tailored to those interests, although the assignment plan for the traditional schools magnet program was not. McFarland v. Jefferson County Public Schools, 330 F. Supp. 2d (W.D. Ky. 2004). Meredith appealed, and the Sixth Circuit affirmed the district court in a per curiam opinion in 2005, where it endorsed the reasoning of the opinion below. McFarland v. Jefferson County Public Schools, 416 F.3d 513 (6th Cir. 2005).

Review by the United States Supreme Court

The Supreme Court granted the plaintiffs’ requests in both cases for review to consider whether the Equal Protection Clause of the Fourteenth Amendment allows locally-elected school boards to adopt race-conscious policies that seek to provide all students with the benefits of racial diversity and to combat racial isolation. For half a century, some of the Supreme Court’s most important work has been to supervise the desegregation of unlawfully segregated public schools. In the process, the Supreme Court has repeatedly encouraged voluntary desegregation measures by school districts and stated that policies promoting racial integration lie within the authority of public school districts. The plaintiffs in these cases call these teachings into question, however, and ask the Supreme Court to dramatically alter the legacy of Brown v. Board of Education.

We represented Seattle before the Supreme Court, along with the law firm of Bennett Bigelow & Leedom, in Seattle, Washington, which has been representing the district from the beginning of the litigation, and we assisted counsel for Louisville in their preparations. Michael Madden, of Bennett Bigelow & Leedom, argued the case before the Court on behalf of Seattle, and Francis Mellen, from the law firm of Wyatt, Tarrant & Combs, in Louisville, Kentucky, argued the case for Jefferson County. More than 50 amicus briefs also were submitted on behalf of the school districts. Organizations and groups filing as amici included the NAACP Legal Defense Fund, the Council of Great City Schools, National School Boards Association, a group of historians, housing scholars, former officials from the United States Department of Defense, several state attorneys general, several United States senators, and several members of the United States House of Representatives.

Oral Argument

The Court engaged in a spirited debate during both of the oral arguments. The Justices actively questioned the lawyers on both sides of the case, although at times, they seemed equally as interested in debating each other. The United States was permitted to argue in both cases, in support of the petitioners challenging the student assignment plans, and the Solicitor General also received active questioning from the bench.

Justice Kennedy asked counsel for PICS and the United States whether the Constitution prohibited both the use of race-conscious mechanisms, such as the plans at issue here, and race-conscious objectives, with the ultimate goal of promoting racial integration. He stated that this distinction “might be necessary for [the Justices to consider when they] write the case.” The plaintiffs and the United States split on the issue. Counsel for PICS argued that pursuing an exclusively racial objective was “prohibited by the Constitution absent past discrimination.” Justice Scalia asked whether that contention extended to magnet schools. Counsel for PICS replied that PICS took the position that a school district could not pursue a race-conscious objective, even through race-neutral means.

The United States, by contrast, stated that “avoiding…racial isolation is an important governmental interest” and that pursuing even a 100% race-conscious objective is constitutional, so long as the mechanisms used are race-neutral. The important question is whether “the policy manages to avoid classifying people on the basis of their race” – where individuals are classified by race the plan can not survive constitutional review. Justice Kennedy asked whether it created an “odd jurisprudence” when “we have an objective that we state in one set of terms but a means for achieving it [that we state] in another set of terms.” Justice Ginsburg raised similar questions.

The Justices asked whether these policies essentially amounted to affirmative action. Justice Souter distinguished the plans from affirmative action measures, on the grounds that “an appropriate criterion of selection is [not] being displaced by a racial mix criterion.” Counsel for PICS responded that the Equal Protection Clause compels government to treat people as individuals regardless of what kind of system is at issue. Justice Ginsburg differentiated between affirmative action policies, which are selection policies, and the “sorting” polices at issue in this case. When counsel for PICS conceded that these cases were different from affirmative action measures, Justice Scalia asked counsel for PICS to identify the important distinctions.

Justice Alito asked why Seattle’s policy did not address the two most racially identifiable schools in the district, which still had an overwhelmingly minority enrollment under the plan. Counsel for Seattle responded that the plan did help the students at those schools, by giving them the opportunity to transfer to a better, more integrated school if they so chose. Justice Alito also asked why the Board adopted the broad white, non-white distinction, given the ethnic diversity within the non-white student population in Seattle.

Justices Souter, Ginsburg, and Breyer questioned counsel for the petitioner in the Jefferson County case on how to square his position with the fact that federal courts had for decades expressly required the district to pursue many of the same measures that his client now asked the Supreme Court to permanently enjoin. Justice Breyer asked how the Constitution could one day “insist that the school boards…take the black and white children and integrate them” and then “the day that the decree is removed tell the school board it cannot make that effort any more…[it must] send the children back to their black schools and their white schools.” He also asked what the Court should do about school districts that have relied on the Court’s earlier cases, which suggested that local school boards have discretion to implement integration policies. Justice Ginsburg asked how the current Jefferson County plan differed from the plan established by the district court. Counsel for Jefferson County responded that the current plan contained many of the same features but that it has been scaled back to make it less intrusive. According to counsel, the desegregation decree was a blunt instrument that was extremely controversial in the community, whereas the current plan has widespread support from parents, as evidenced by public opinion polls and stabilized enrollment numbers.

Justice Souter asked why the Court should adopt a constitutional jurisprudence that requires school districts to “hide the ball.” He asked the United States why, if the Court decides that the Constitution permits school districts to pursue race-conscious objectives, it should not also find that the Constitution permits limited use of race-conscious means? The United States responded that the Constitution puts a premium on avoiding express racial classifications and suggested that if race-conscious objectives require race-conscious means that might mean those objectives are also constitutionally impermissible.

Justice Scalia asked counsel for Jefferson County about community attitudes concerning the plan in Jefferson County, specifically parents’ opinions about the policy. Counsel responded by pointing the Justices to opinion surveys in the record that show that the policy garners the support of substantial majorities of both black and white parents.

Most of the Justices conceded the good intentions of both school boards in these cases, but Justice Kennedy suggested that the Court has to establish a rule of law that would also apply when there is an “insincere school board.” Justice Kennedy asked whether the Court should set out a new course where it allows districts that have been found unitary to “use individual skin color as a basis for assignment” without any restriction. At one point, Justice Kennedy opined that such a rule could take the Court on a perilous course.

Justice Kennedy also asked about the success of race-neutral approaches in Jefferson County. Counsel for Jefferson County stated that the school board had experimented with race-neutral mechanisms and that many such mechanisms are included in the current plan. However, counsel also emphasized that Jefferson County, like other districts that have explored race-neutral approaches, has found that they are not as successful in achieving the district’s goals. During the Seattle argument, Justice Kennedy also asked how the school district’s policy differed from the “racial balancing” that the Court has described as unconstitutional in other cases. Counsel for Seattle responded that racial balancing implies a policy where there are no compelling interests and where an inflexible, quota-like approach is employed. He distinguished Seattle’s plan, which was established to pursue a compelling interest in the educational and social benefits of diversity and was designed to pursue integration in a flexible, limited way.

Chief Justice Roberts asked whether either plan had a logical endpoint. Both school districts responded that the school board reviews the plan annually and that the plans are also constantly subject to revision or revocation as a part of the democratic process.

In Seattle, Justices Stevens, Kennedy, Breyer, and Alito asked whether resegregation had occurred since the district stopped the plan in response to the ongoing litigation. Counsel for Seattle explained that several schools had become significantly less integrated since the school district halted implementation of the assignment policy.

Justice Kennedy asked about the impact of the Jefferson County plan on student assignments, and counsel explained that race was decisive in only two to three percent of choice applications. Justice Kennedy then asked why the plan was necessary, if it had such a minimal impact, and whether the plan was just “symbolic that race counts.” Counsel for Jefferson County responded that these policies are a careful and limited attempt to prevent resegregation.

These cases are being closely watched by those within the education and civil rights community, and beyond. It is always difficult to predict the outcome of a case based on oral argument. Here, it seems safe to conclude that there will be passionate opinions written by Justices on both sides of the case. This keen level of interest makes it almost certain that the Court will not issue decisions in these cases until late in the Term which closes at the end of June 2007.