By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional.
There seemed little prospect that either the Louisville, Ky., or Seattle plans would survive the hostile scrutiny of the court's new majority. In each system, students are offered a choice of schools but can be denied admission based on their race if enrolling at a particular school would upset the racial balance.
At its most profound, the debate among the justices was over whether measures designed to maintain or achieve integration should be subjected to the same harsh scrutiny to which Brown v. Board of Education subjected the regime of official segregation. In the view of the conservative majority, the answer was yes.
While there is no reliable data on how common these plans are, they are thought to be widespread among school districts where residential patterns would otherwise produce neighborhood schools of one race or nearly so. Depending on how broadly the court rules, possibly hundreds of districts would need to modify or scrap voluntary integration plans.
The National School Boards Association as well as the Council of the Great City Schools, representing 66 urban districts, filed briefs on behalf of Seattle and Louisville, warning of impending disruption if the justices overturn the lower court rulings that upheld the two plans.
The Supreme Court had declined to review a similar voluntary integration plan in Massachusetts last year, shortly before the retirement of Justice Sandra Day O'Connor and the arrival of Justice Samuel A. Alito Jr. But in June, after weeks of internal debate, the justices accepted these two appeals.
One was filed by a white woman in Louisville whose son was denied a transfer to attend kindergarten in a school that needed black rather than white students in order to keep its black population at the district's required minimum of 15 percent.
The other was filed by parents in Seattle who organized as a corporation to oppose the plan there, which applies only to the city's 10 high schools. A racial ''tiebreaker,'' used when a high school attracts more students than there are places, intends to keep the schools within 15 percent of the district's overall makeup, which is 60 percent nonwhite.
Before the arguments on Monday, the challenge for the school board lawyers defending the plans, along with their allies in the civil rights community, had appeared to be to persuade the justices that the appropriate analogy was not to affirmative action, a freighted subject for the court in which benefits are bestowed on one group and withheld from another, but rather to integration, in which the goal is to educate everyone as equally as possible.
But by the end of the tense two hours of argument, that effort had not so much failed as it had become irrelevant. Lawyers for the school systems found themselves struggling, under the justices' questioning, to meet the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education.
For example, Michael F. Madden, the Seattle district's lawyer, tried to argue that because the Seattle high schools were ''basically comparable,'' and ''everyone gets a seat,'' the court should not view the plan as ''a selective or merit-based system where we adjudge one student to be better than the other.''
It was, Mr. Madden said, ''a distributive system'' that was ''quite wholly dissimilar to a merit or selective-based system.''
Chief Justice John G. Roberts Jr. countered, ''Saying that this doesn't involve individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color and not any other factor.''
He added: ''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 gets a seat distinguishable?''
''Because segregation is harmful,'' Mr. Madden replied.
''It's an assignment on the basis of race, correct?'' the chief justice persisted.
It was, Mr. Madden replied as his 30 minutes ran out and the red light came on, an effort ''to bring students together in a mix that is not too far from their community.''
As the arguments proceeded, the court's more liberal members appeared increasingly and visibly dispirited. Justice Ruth Bader Ginsburg tried unsuccessfully to turn the chief justice's colloquy with Mr. Madden in a different direction. The question of whether ''using racial integration is the same as segregation,'' she said, was ''pretty far from the kind of headlines that attended the Brown decision.''
Bringing ''white and black children together on the same school bench,'' Justice Ginsburg continued, ''seems to be worlds apart from saying we'll separate them.''
Justice Stephen G. Breyer let his frustration show in several exchanges with Solicitor General Paul D. Clement, who argued the Bush administration's position as a ''friend of the court'' for the challengers and against the school systems in both cases.
''Think, go back to Cooper v. Aaron,'' Justice Breyer told the solicitor general, referring during the argument in the Louisville case to the court's 1958 decision enforcing a desegregation order in Little Rock, Ark. ''Go back to the case where this court with paratroopers had to use tremendous means to get those children into the school. That's because the society was divided.''
He continued: ''Here we have a society, black and white, who elect school board members who together have voted to have this form of integration. Why, given that change in society, which is a good one, how can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the black children out of the school?''
''Well, I understand that, Justice Breyer,'' Mr. Clement said. ''But I think the answer to that is that the lesson of history in this area is that racial classifications are not ones where we should just let local school board officials do what they think is right.''
The Louisville plan, adopted in 2000 as the formerly segregated district emerged from 25 years of federal court supervision, provides that all schools should have a black student enrollment of no lower than 15 percent and no greater than 50 percent. The district as a whole, which includes suburban areas of Jefferson County as well as the city of Louisville, is about one-third black.
Mr. Clement said the 15-to-50-percent range was a ''strict racial band'' that was not sufficiently ''narrowly tailored'' to satisfy the ''strict scrutiny'' to which the court's precedents subject government actions that are based on race. The administration's position is that those choosing to adjust the racial balance in their schools should do so by ''race-neutral means,'' like magnet schools that attract children across racial lines.
''There's a fundamental difference between whether or not the policy manages to avoid classifying people on the basis of their race,'' the solicitor general said.
Justice David H. Souter asked Mr. Clement why this position was not just another way of saying that ''the important thing is simply to hide the ball.'' If improving the racial mix was the objective, Justice Souter asked, ''why can't they do that candidly?''
There were ''several responses,'' Mr. Clement answered. ''One is that the Constitution puts a particular premium on avoiding express racial classifications.''
Justice Anthony M. Kennedy asked the lawyers a series of questions designed to test the outer reaches of their positions. Could a school district deliberately place a new school in a location designed to supply a racially mixed student body, he asked, and appeared displeased when Harry J. F. Korrell, the lawyer representing the parents challenging the Seattle plan, answered no.
While his questions suggested that he would not rule out any and all policies undertaken with a knowledge of the probable racial consequences, Justice Kennedy made clear his distaste for the policies at issue in these cases, Parents Involved in Community Schools v. Seattle School District, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.
To Mr. Madden, the Seattle district's lawyer, Justice Kennedy said that unlike magnet schools, special resources, or school location decisions, ''you're characterizing each student by reason of the color of his or her skin.''
He continued: ''That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.''
by Linda Greenhouse. NY Times, Dec 2005 
