by Karen Miksch, assistant professor of higher education and law, Department of Postsecondary Teaching and Learning

On June 28, 2007, the U.S. Supreme Court ruled that voluntary school integration-assignment plans adopted by Seattle and by Jefferson County, Kentucky were unconstitutional. (Parents v. Seattle School District No. 1 and Meredith v. Jefferson County). The fractured 4-1-4 ruling is called a plurality because, although a majority of the justices agreed that the plans at issue were unconstitutional, a different majority held that school districts have a compelling interest in promoting diversity that justifies their giving some consideration to race, even in the absence of past segregation.

Chief Justice Roberts, joined by three other Justices, argued that the voluntary assignment plans were unconstitutional because the districts’ concept of diversity was too limited, classifying students as white or nonwhite (Seattle) or as black or other (Kentucky). Noting that the Seattle district had not been segregated by law and that the Jefferson County district had been declared desegregated in 2001, Roberts argued that the districts’ interest in maintaining racial integration did not justify assigning students based on two racial categories.

Justice Breyer, along with three other members of the court’s minority, disagreed, arguing that the Chief Justice’s opinion misapplied past cases and constitutional principles. Reading his opinion from the bench (a rare occurrence), Breyer went on to say that the Chief Justice’s opinion “announces legal rules that will obstruct efforts by the state and local governments to deal effectively with the growing resegregation of public schools and it undermines [Brown v. Board of Education’s] promise of integrated primary and secondary education that local communities have sought to make a reality.”

Justice Kennedy wrote, arguably, the most important opinion. Although he concurred that the integration plans at issue were illegal, he wrote separately to emphasize his view that school districts have a compelling interest in promoting diversity that justifies that they give some consideration to race. Kennedy listed several areas where he thought school districts could take race into account, including the drawing of attendance zones, the selection of sites for new schools, and the recruitment of students and faculty. Because the four justices who completely dissented against Chief Justice Roberts shared Kennedy’s view, a majority of the Court recognized that integration is a compelling interest and there are some legally acceptable techniques for achieving it.

Although the Supreme Court’s decision limits the tools that schools can use to halt resegregation, it does provide some avenues for voluntary integration plans. P–12 schools that want to voluntarily adopt assignment policies should still be able to do so if they first, in good faith, consider race-neutral alternatives. If the school decides that race-neutral means will not ensure the educational benefits of a diverse student body, then the school must design an assignment policy that defines diversity broadly (race can be one factor, but may not be the only factor) and holistically review applications to ensure diversity.

In addition, the court acknowledged once again that universities have a compelling interest in a diverse student body—an important part of which is racial diversity—and that colleges and universities may consider race as a factor in their individual admissions decisions. Thus the Court reaffirmed its 2003 ruling in the Michigan affirmative action case (Grutter v. Bollinger) and reiterated that postsecondary institutions may voluntarily adopt affirmative action policies designed to ensure a diverse student body and the concomitant educational benefits.

Karen Miksch holds a J.D. from the University of California and worked as a civil rights attorney for six years before joining the faculty. She recently contributed a chapter to the book Charting the Future of College Affirmative Action: Legal Victories, Continuing Attacks, and New Research (Civil Rights Project at the University of California, Los Angeles, 2007).

PHOTO: Greg Helgeson