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Supreme Court Hears School Diversity Case

ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MELISSA BLOCK, host:

And I'm Melissa Block.

(Soundbite of demonstration)

That's the sound of demonstrators on the plaza of the U.S. Supreme Court today. They were there because the court heard arguments in two cases testing what steps, if any, school boards may take to make sure public schools are racially integrated. At issue where school assignment plans from Seattle, Washington, and Louisville, Kentucky.

NPR's Nina Totenberg reports.

NINA TOTENBERG: The Supreme Court's new ideological makeup was on full display this morning with swing justice Sandra Day O'Connor now retired, and two new and conservative Bush appointees on the court. There seemed at first blush to be five justices now willing to ban any consideration of race in public school assignments and four justices very upset by that prospect.

The first case was from Seattle, a district that is 60 percent minorities. To try to keep the schools from becoming segregated to reflect housing patterns, the school board used a plan for high schools only under which students could choose any school, and for those schools, where there were more applicants than seats, race would be one of the tie-breaking criteria. Under the system of a school was over subscribed, students with siblings in the school got first preference, then those who lived close by, and lastly, there is race.

Representing parents who were challenging that system, Lawyer Harry Korrel, backed by the Bush administration, told the justices that some 300 children did not get their first choice of school because of their race and that any consideration of race is barred by the Constitution.

Questioned by Justice Kennedy, he said that the school could not even use race in citing the building of a new school to attract a diverse student body. The court's more liberal justices immediately sought to draw a distinction between the Seattle case and the Supreme Court's previous decisions involving affirmative action programs in higher education. The same strict rules may not apply, suggested Justice Souter, because no child is denied a place in school.

Justice Breyer chimed in that unlike affirmative action programs in colleges and universities, the Seattle's school assignments are not based on any evaluation of any individual student's achievements.

Justice STEPHEN BREYER (U.S. Supreme Court): Here we have no merit selection system. Merit is not an issue. The objects of the people who run this place is not to create a school better than others, it is to equalize the schools.

TOTENBERG: When the Bush administration's Paul Clement said that school districts might be able to choose sites for new schools based on race, so as to attract a diverse student body, Justice Souter remark caustically, so it's all right to use measures that, quote, "hide the ball" on race, but not to do it candidly?

The designing the use of race as a tie breaker in student assignments was Seattle School Board lawyer Michael Madden.

Mr. MICHAEL MADDEN ( Seattle School Board): In this case, we're not after a rigid set of numbers. The purpose was to have schools that had become diverse through integration efforts not stray too far from the community's demographic because we're trying to prepare students to live in those communities.

Justice ANTHONY KENNEDY (U.S. Supreme Court): The problem is that unlike strategic citing, magnet schools, special resources, special programs in some schools, you're characterizing each student by reason of the color of his or her skin. That is quite a different means. And it seems to me that should only be, if ever allowed, allowed as the last resort.

TOTENBERG: That last observation was from Justice Kennedy, widely viewed as the swing justice in this case. Chief Justice Roberts asked whether a student turned down at one of the six most popular schools will get an equal education at one of the other most popular schools.

access under this plan, who wanted access. I think it's - there is no dispute -

Justice JOHN ROBERTS (U.S. Supreme Court): One second, how is that different from a separate but equal argument? In other words, it doesn't matter that they're being assigned on the basis of their race because they're getting the same type of education.

maintain the diversity that existed within a broad range in order to try to obtain the benefits that the educational research shows flow from an integrated education.

Justice ROBERTS: Even though, in the individual cases the students including minority students in I gather 89 or 100 of the cases are being denied admission on the basis of their race?

TOTENBERG: That prompted this reaction from Justice Kennedy.

Justice KENNEDY: Well, the emphasis on the fact that everybody gets into a can get into the school that you really prefer, and that in some cases depends solely on skin color. You know, it's like saying that everybody can have the meal but only people of a separate skin can get the dessert.

TOTENBERG: Chief Justice Roberts, followed up.

Justice ROBERTS: I mean, everyone got a seat in Brown as well, but because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there's no problem here because everybody get a seat distinguishable?

Justice KENNEDY: Because segregation is harmful. Integration, as this court has recognized in Swann and the first Seattle case has benefits.

TOTENBERG: After the Seattle argument was over the court moved on to the case from Louisville, Kentucky. Once segregated by law, the Louisville Schools Board was under court order to desegregate until just six years ago. After the court ended its supervision, the school board elected to continue what had become a neighborhood, choice of schools with a wide variety of programs throughout the district and racial balancing.

In the Supreme Court today, Justice Ginsburg asked lawyer Teddy Gordon, who's challenging the voluntary program, how the rules could change seemingly overnight.

Justice RUTH GINSBURG (U.S. Supreme Court): What's constitutionally required

TOTENBERG: Justice Breyer followed up.

Justice BREYER: How could the Constitution the day that that degree is removed tell the school board it cannot make that effort anymore. It can't do what it's been doing and will send the children back to their black schools and their white schools.

Justice KINSBERG: And my response is that you have those series of cases that say once you've achieved the unitary status, you no longer get to carve out that exemption to the 14th Amendment, where it's a quota system. And we are solely, without any type of individual holistic review applied to these kids. I mean, there should be some -

Justice KINSBERG: How would you plan a holistic review to a kindergartener? What else is there, other than a child of a certain age and therefore will enter a certain grade?

TOTENBERG: Addressing the Bush administration's Paul Clement, Justice Breyer voiced his frustration with the argument that race can never be considered in

Justice BREYER: There's a terrible problem in the country. And the problem is that there are lots and lots of school districts that are becoming more and more segregated, in fact, and that school boards all over are struggling with this problem. And if they knew an easy way, they'd do it. So I don't know whether this is exactly the only way to do it or not. I do know courts are not very good at figuring that out. And I guess that's why the court previously has said it's primarily up to the school district.

TOTENBERG: Justice Stevens remarked that rules like the administration's advocacy for total color blindness sometimes make no sense at all.

Justice JOHN PAUL STEVENS (U.S. Supreme Court): It is often true that sometime doctrines have unintended consequences when you push it to the logical extreme. There's no doubt about that.

Justice BREYER: There's no doubt about that, but the rest of us do have to work -

Justice KENNEDY: They also have some unintended consequences when this court ignores them.

TOTENBERG: That last was from Justice Kennedy, who went on to say that the Louisville School Board's motives were undoubtedly good, but that constitutional rules cannot assume good faith.

Justice KENNEDY: If we for the first time say that a system that has achieve unitary status, so that the courts no longer have the authority or the need to supervise it, can then turn around and use individual skin color as a basis for assignment. We've never said that and that takes us on a very perilous course.

TOTENBERG: A decision in the school desegregation case is expected by summer.

Nina Totenberg, NPR News, Washington.

BLOCK: You can hear the opening arguments in both desegregation cases before the Supreme Court at NPR.org. $00.00 Transcript provided by NPR, Copyright NPR.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.