Issues
Can school districts constitutionally use percentage-based range plans to assign students to public schools based on race in order to capture the benefits of educational diversity?
The Jefferson County Public School District in Jefferson County, Kentucky, requires that 15 to 50 percent of all students in each school be African-American. Petitioner Crystal Meredith claims that the district violated the Fourteenth Amendment when it rejected her application to enroll her son at a nearby school on the basis of race. To decide this case, the Supreme Court will have to determine whether racial diversity in K–12 public education is a compelling state interest and whether the district’s racial range mandate is narrowly tailored to further that interest. The decision will determine the extent to which schools are permitted to consider race in school assignment policies.
Questions as Framed for the Court by the Parties
- Should Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of University of California v. Bakke, 438 U.S. 265 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003) be overturned and/or misapplied by the Respondent, the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (non-traditional) schools in the Jefferson County Public Schools?
- Whether the race-conscious Student Assignment Plan with mechanical and inflexible quota systems of not less than 15% nor greater than 50% of African American students without individually or holistic review of any student, meets the Fourteenth Amendment requirement of the use of race which is a compelling interest narrowly tailored with strict scrutiny.
- Did the District Court abuse and/or exceed its remedial judicial authority in maintaining desegregative attractiveness in the Public Schools of Jefferson County, Kentucky?
Facts
Desegregation of Schools in Jefferson County
The backdrop for this case was set in 1954. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court mandated the desegregation of public schools. Over subsequent decades, federal courts ordered school districts with institutionalized segregation plans to desegregate through a system of redistricting and busing. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 27–32 (1971).
In 1975, the U.S. District Court for the Western District of Kentucky issued a decree mandating that the Jefferson County public school system (“Jefferson County Public Schools”, or “JCPS”) adopt a desegregation plan. Brief for Respondent at 11. Jefferson County is the most populous county in Kentucky and encompasses the Louisville metro area. Id. at 1. The plan originally involved reassigning students to schools based on their last name. Id. at 11. Although it was modified on several occasions to allow for more student choice, the court-ordered plan remained in place for a quarter of century. Id. at 12. In 2000, the District Court held that JCPS was no longer segregated and dissolved the decree. McFarland v. Jefferson County Pub. Schs., 330 F. Supp. 2d 834, 841 (W.D. Ky. 2004) (citing Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 382 (W.D. Ky. 2000)). The Hampton court found that although some racial imbalances still existed (e.g., classroom segregation, imbalances in student achievement), there was no evidence that it was caused by the institutionally segregated system. Hampton, 102 F. Supp. 2d at 363. Shortly thereafter, the school board adopted a voluntary student assignment plan to maintain racial integration. McFarland, 330 F. Supp. at 842.
The Student Assignment Plan
Termed a “managed choice” plan by the JCPS, the plan allocates students at the elementary, middle, and high school levels. Brief for Respondent at 4. The plan takes into account student choice, available space in a school, and the current racial makeup of the school. McFarland, 330 F. Supp. 2d at 844. Schools must have a racial makeup that is 15 to 50 percent African American, a guideline that the school board established in 1996 while under the 1975 decree. See Brief for Respondent at 12 & n.13; Brief for Petitioner at 3. In determining the percentage of African Americans within a school, students are categorized as either “black” or “other”, which is also a remnant of the 1975 decree. Brief for Respondent at 5 n.4; Brief for Petitioner at 3.
Students are assigned to an attendance area based on their residence. Each attendance area has a primary “resides school” and a set of “cluster” resides schools. Brief for Respondent at 5. Students will automatically be placed in their resides school or a cluster school, unless they indicate a desire to attend a different school. Id. at 6. To avoid attending their resides school, students may apply to other schools. Id. The individual schools evaluate transfer applications and make determinations based on the special needs of the student and family, the school’s institutional capacity, and the need to stay within the racial guidelines. McFarland, 330 F. Supp. 2d at 844 & n.15.
JCPS adopted the plan to achieve its pedagogical goals under the Kentucky Education Reform Act of 1990. 1990 Ky. Acts ch. 476. Due to countywide geographic racial segregation, the school established the assignment plan to assure racial integration in schools that would otherwise be racially homogeneous if assignment was based solely on residence. Brief for Respondent at 3. JCPS maintains that each school is equal because each receives equal funding, has equally qualified staff, and offers equivalent programs. Id. at 2.
The Current Litigation
In 2002, JCPS assigned Joshua McDonald to Young Elementary School, one of his cluster schools. Brief for Respondent at 10. JCPS was unable to assign him to his resides school because it was full to capacity and because Crystal Meredith, Joshua’s mother, enrolled him a month after school had already begun. Id. Joshua applied to Bloom Elementary School, which was outside his cluster but closer to his home than Young was. Id. Bloom rejected Joshua’s application because it was concerned that admitting Joshua would imbalance its racial makeup. See Brief for Petitioner at 3.
Acting on Joshua’s behalf, Meredith joined several other plaintiffs in a suit against JCPS alleging that the assignment plan violated their equal protection rights under the Fourteenth Amendment. See McFarland, 330 F. Supp. 2d at 837. The U.S. District Court for the Western District of Kentucky held that JCPS had a compelling interest in integrating public schools to enhance the quality of education and promote tolerance and understanding. Id. at 853. It believed this was a natural extension of the desegregation jurisprudence initiated by Brown. Id. at 851. The court’s ruling relied primarily on the Supreme Court’s holding in Grutter v. Bollinger, 539 U.S. 306 (2003). There the Court held that achieving racial diversity in a state-run law school was a compelling state interest because it promoted tolerance and prepared students to work with diverse groups of people. Id. at 330–31.
The district court then went on to approve the plan as narrowly tailored to fit the school’s interest in diversity, but struck down the portion of the plan that placed students on different assignment lists based on race. McFarland, 330 F. Supp. 2d at 862. Cf. Brief for Petitioner at 3. In particular, it upheld the use of a percentage guideline for assigning students based on race. The court differentiated the guideline from a quota system because the guideline was a target range and not a specific number. McFarland, 330 F. Supp. 2d at 857. The court dismissed each plaintiff’s claim individually and held that Joshua was not unduly harmed by his transfer denial because the schools offered equal services. Id. at 860 n.48.
In a curt per curiam opinion, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court. McFarland v. Jefferson County Pub. Schs., 416 F.3d 513 (6th Cir. 2005). After the court of appeals denied rehearing, the Supreme Court granted certiorari. Brief for Respondent at 14–15.
Analysis
The University of Michigan cases
The Supreme Court set the doctrinal foundation for Meredith in Grutter v. Bollinger and Gratz v. Bollinger. In Grutter and Gratz, the Court addressed the constitutionality of race-conscious affirmative action admission practices at the University of Michigan law school and undergraduate program. In both cases, the Court began by noting that under the Equal Protection Clause of the Fourteenth Amendment, all racial classifications, whether benign or malign, are subject to strict scrutiny. This means they must be narrowly tailored to achieve a compelling state interest. See Grutter, 539 U.S. at 326; Gratz, 539 U.S. at 270. To be narrowly tailored, the program must achieve its desired outcome through the means that least burdens the disfavored class. See Grutter, 539 U.S. at 326–27; Gratz, 539 U.S. at 270. A quota system, which reserves spaces for minority candidates for which other students can never compete, is impermissible. See Grutter, 539 U.S. at 334.
In both Grutter and Gratz, Court found that the university’s goal to achieve a diverse student body through its program was a compelling state interest. Grutter, 539 U.S. at 328; Gratz, 539 U.S. at 268. The Court heavily deferred to the schools’ finding that diversity built racial understanding, broke down stereotypes, improved educational outcomes, and helped students prepare to succeed in a diverse workforce. Grutter, 539 U.S. at 328–44.
However, the Court found that the program in Gratz was not narrowly tailored. See Gratz, 539 U.S. at 270. The undergraduate program, which automatically gave minority applicants a large block of points needed for admission, was not technically a quota, but lacked individual review and thus treated each minority applicant solely as a member of his or her race. See id. at 539 U.S. at 270. However, the law school’s program, which engaged in an individualized, holistic review of each applicant and used race only as a “plus factor,” was properly tailored. See Grutter, 539 U.S. at 334.
Meredith’s Arguments
Following the Court’s analysis in Grutter and Gratz, Meredith argues that the Court should review the JCPS plan under strict scrutiny because it uses racial classifications. Brief for Petitioner at 6. Under strict scrutiny, Meredith opines, the Plan does not pass constitutional muster because it does not seek a compelling state interest and is not narrowly tailored to achieve that interest. Id.
Compelling Interest
Meredith contends that the plan does not implicate a compelling state interest under the Equal Protection Clause. It points out that JCPS does not seek to eliminate past intentional discrimination, given that JCPS no longer suffered from vestiges of past discrimination. Brief of United States as Amicus Curiae Supporting Petitioner (U.S. Brief) at 6. Present and future societal discrimination alone is not sufficient to justify racial classification. Brief for Petitioner at 6 (citing Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)).
Meredith asserts that racial diversity in primary and secondary schools is not a compelling state interest. Id. at 8. First, Meredith is skeptical about whether an integrated schoolroom confers any educational or social benefit. Id. at 4–5. A review of available social science, amici for Meredith conclude, reveal that that there is no clear and consistent evidence of increased academic achievement in desegregated schools. Brief of Armor, Thernstrom, and Thernstrom as Amicus Curiae Supporting Petitioner (“Armor Brief”) at 12–21. Nor does social science currently support the conclusion that desegregation increases long-term outcomes like college attendance, years of school completed, future salary, or social outcomes like positive racial attitudes and increased racial understanding. Id. at 21–29.
Meredith further submits that deliberate racial integration has the ironic effect of creating and perpetuating stereotypes by suggesting that nonintegrated schools cannot provide African-American children with an education and job opportunities of comparable quality to integrated schools. Brief for Petitioner at 8. Meredith finally questions whether the plan is truly seeking “diversity” rather than engaging in unconstitutional “outright racial balancing,” Grutter, 539 U.S. at 330, because it only recognizes race and not other factors such as musical talent, athletic prowess, or life experience. Brief for Petitioner at 5; U.S. Brief at 6.
Narrow Tailoring
Meredith also submits that the JCPS plan also fails the narrow tailoring prong of the Court’s strict scrutiny. Brief for Petitioner at 7. The plan reserved a fixed minimum percentage of schools slots to black students, effectively blocking access by students of any other race to these seats. See Id. at 5. The plan lacks the individualized review that is the linchpin of a constitutional race-conscious admission plan. See U.S. Brief at 7. Race is the “make or break test” to determine whether a student is admitted into a particular school. Brief for Petitioner at 5, 8. The resulting plan, Meredith argues, was not minimally restrictive but was rather a “hard-core, mechanized quota.” Id. at 7.
Furthermore, Meredith argues that this treatment unduly burdened non-black children like Meredith’s son because treating individuals as nothing more than members of their race denigrates their sense of self-worth. Brief for Petitioner at 8. See Grutter, 539 U.S. at 341. The United States, as amici, argues that JCPS failed to pursue race-neutral means, such as allotting slots on the basis of economic status or instituting a lottery system, to reduce racial isolation. U.S. Brief at 7. The United States also expresses concern that the plan lacks any fixed or logical end-point. It argues that JCPS will engage in racial balancing indefinitely, which is anathema to the purpose of Brown desegregation: to cease attempts at integration after achieving an integrated school system. Id. at 7.
The School Board’s Arguments
Compelling Interest
The School Board contends that the JCPS plan is constitutionally sound under the Court’s Fourteenth Amendment jurisprudence, because the plan is narrowly tailored to achieve the compelling state interest of racial integration. The Board urges that racial integration, as distinct from “diversity,” is a constitutionally cognizable compelling interest because it makes the school system more competitive and more attractive. Brief for Respondents at 23. Given the highly segregated residential patterns of the county, the plan prevents resegregation that would cause many schools to qualify as “failing.” Id. at 23.
The Board suggests that racial integration in the K–12 schoolroom provides important educational benefits to the students. Participation in an integrated class teaches racial tolerance and breaks down racial stereotypes. Id. at 25. These “important human lessons” equip students for participation in a racially diverse society and workforce, which is particularly important in Jefferson County where one-third of the population is African American. Id. at 25, 27. The Board urges that teaching children to develop an open mind and showing them positive examples about members of other races provides a solid foundation for a cross-racial democracy. Id. at 25. These lessons are even more “important and laudable” as they were in Grutter because primary and secondary students are still forming their opinions. Brief for Respondents at 25.
The Board also offers evidence that test scores of black students in integrated schools have increased and that the black-white achievement gap in Jefferson County has decreased. Id. at 28. Although acknowledging the existence of conflicting evidence, the court below deferred to the school board’s judgment. Id. at 28–29. According to the Board, this posture was appropriate in light of the Grutter Court’s deference to the “complex educational judgments” of the school and the deference federal courts traditionally give to local school boards. Id. at 29 (citing Grutter, 539 U.S. at 328). The Board asserts that student assignment is both a basic function of school boards and one that requires boards to balance elusive factors like facility and program capacity, school popularity, and demographics. Id. at 32. This complicated exercise, the Board argues, is better left to elected local officials rather than judges.
Narrow Tailoring
The Board next claims that the plan passes the “narrowly tailoring” means requirement of race-conscious state action. Brief for Respondents at 36. The Board concedes that the plan’s explicit race-based decision-making may not be sufficiently focused on the specific goal of diversity. Id. at 39. However, the plan “fits” the goal of obtaining and maintaining racial integration, which it argues is a sufficiently compelling interest. Id.
The Board concedes that the plan lacks “individualized consideration” of every applicant as required by Grutter. However, they urge that the purpose of such consideration was to prevent merely pretextual use of race to achieve diversity. Id. at 40. Here, the Board is openly admitting that it seeks racial integration and so there lacks any pretext. Id.
Moreover, the Board argues, the context is different. Unlike admissions programs in higher education, assignment plans in primary and secondary education do not allocate students according to merit, so lack of individual review does not raise the same harm as in Grutter. Brief for Respondents at 41.
The Board further concedes that the plan uses numbers. However, they point out, the plan is not a quota because it seeks black student participation within a range of numbers and not a precise target, and Grutter indicated that a range is not necessarily a quota. Id. (indicating that Grutter held that the law school’s variance of minority enrollment from 13.5 to 20.1 percent was “a range inconsistent with a quota.” 539 U.S. at 336).
Finally, the School Board urges that the plan does not impart “undue harm” on excluded white students, because it does not deprive them of an education per se, just their choice of an education. Brief for Respondents at 46. Because all JCPS schools are equal, the argument goes, the plan does not distribute limited goods at the expense of others. Brief of the NAACP Legal Defense & Education Fund, Inc. as Amici Curiae in Support of Respondents at 21. However, given that the petitioners in Grutter and Gratz were also denied their choice of an education, the Court may not be persuaded by this argument.
Discussion
For the past half-century, federal courts have been the watchdogs monitoring segregation in schools. See Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) (Brown II). Local district courts issued decrees mandating redistricting, busing, and other remedial plans to forcibly integrate America’s public school system. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Green v. County Sch. Bd. of New Kent County, 391 U.S. 430 (1968). Fifty years after Brown II, however, district courts are dissolving their desegregation decrees, declaring victory in their battle against institutionalized racism. See Robert Anglen, Feds End Desegregation Monitoring of District, Ariz. Republic, May 25, 2005.
In many cases, judges have reason to celebrate: as early as 1988, 45 percent of African American students were attending majority-white schools. Jennifer Holladay, Brown v. Board: Timeline of School Integration in the U.S., Teaching Tolerance, Spring 2004. Today, however, there are renewed concerns that resegregation of white children from minorities is setting the clock back. See Gary Orfield & John T. Yun, Resegregation in American Schools, The Civil Rights Project, Harv. Univ. 3 (June 1999). Some see this trend as proof that courts have failed to deliver the “[u]nfinished promise of Brown.” Brief for Howard University School of Law as Amicus Curiae for Respondent at 17.
As more school districts shed the judicial imprimatur of their segregation decrees, they must justify race-conscious school assignment plans in other ways. See generally Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237 (1991) (holding that school board is not responsible for remedying resegregation after the desegregation decree has been dissolved). Some districts argue that racial integration of public schools enhances the quality of education for all students and makes them better members of society. See, e.g., Brief for American Council on Education as Amicus Curiae for Respondent at 2, 9. In the case at bar, the Supreme Court will determine whether that is a compelling state interest. The Court will also potentially clarify what public schools are permitted to do to racially integrate in post-Brown America.
In Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, the Court will consider whether promoting diversity in mandatory public education is a compelling state interest. If the Court determines that it is, it will next examine whether either school district’s program is narrowly tailored to serve that interest. While both schools have race-conscious student assignment plans designed to integrate individual schools, they take different approaches to achieve this end. Both systems rely primarily on a student’s choice, and use a miscellany of factors including race to determine where a child will attend school. See Brief for Seattle School District at 6; Brief for Respondent at 4. Jefferson County schools must maintain a range of 15 to 50 percent of African Americans within each school. Brief for Petitioner at 3. Seattle schools have no racial balance target; instead, race is used as a tiebreaker to assign students to over-subscribed schools that are deemed to be “racially imbalanced” (i.e., that deviate more than 15 percent from the racial make up of the School District). Brief for Seattle Sch. District at 5–11. Also, the Seattle plan is limited to students entering high school, while the Jefferson County plan applies to children at every level of primary and secondary education.
Should Schools Promote Racial Diversity?
The Court must examine whether JCPS has a compelling interest in maintaining racial diversity in schools. The vast majority of the amicus briefs filed for JCPS laud the pedagogical and societal benefits of racially integrated classrooms. According to the briefs, racial integration in public schools will make people better team players, promote a more favorable view of sports, reduce crime, and enhance productivity in the workplace. See, e.g., Brief for National Collegiate Athletic Ass’n and National Basketball Retired Players Association as Amicus Curiae for Respondent (“Brief for NCAA”). They argue that the compelling interest in creating a diverse educational environment articulated in Grutter is even more crucial where the students are younger and more impressionable. See Brief for Respondent at 16. Like Grutter, JCPS will rely heavily on social science data indicating that children receive a material benefit from interacting with racially diverse peers. See generally Brief for NCAA at 8–11 (presenting social science data). Petitioners will respond with their own barrage of figures indicating that racially integrated settings have no appreciable effect on students’ academic performance or ability to appreciate difference. See Brief for the Florida Governor John Ellis “Jeb” Bush and the State Board of Education as Amicus Curiae for Petitioners at i, 5. In the end, the Court may hang its hat on whose statistical data appears more convincing.
If the Court finds that JCPS has some kind of compelling state interest, it will next decide whether the assignment plan is narrowly tailored to fit this interest. The most contentious issue will be whether JCPS’s range plan constitutes a quota. See Brief for Petitioner at 7. Historically, the Court has been very adverse to rigid numerical targets. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). See also Gratz v. Bollinger, 539 U.S. 244 (2003) (rejecting a collegiate admission system in which students were allocated points based on race). Bakke and Gratz, however, dealt with merit-based admission to non-mandatory higher education. Meredith deals with a compulsory primary education system in which, according to JCPS, all of the schools within the district provide equal services. Brief for Respondent at 2. Therefore, the argument goes, no student is unduly burdened by a race-conscious system. See McFarland, 330 F. Supp. 2d at 860 n.48. This distinction from Bakke and Gratz may be hard to square with the fact that the claimants in those cases, like Joshua McDonald, were not completely foreclosed from receiving an education: they were able to attend school, just not the school of their choice.
The Court’s decision also rests on the degree of deference it will give to JCPS. Grutter indicated that the Court will give deference to the local body most attuned to the needs of the educational institution in question. This is even more apparent where the governing body was democratically elected and thus accountable for its decisions. See Swann, 402 U.S. at 16. However, Swann was decided before the Court adopted the strict scrutiny test for this type of race-motivated government action. Also relevant to the Court decision is the origin of the range plan. Although the JCPS range plan was adopted voluntarily, it is a direct vestige of the 1975 desegregation decree. See Brief for Respondent at 12 n.13. This bespeaks the fact that the range plan was, at one time, implicitly endorsed by a federal court. This is relevant to the third issue the Court will examine—the scope of authority district courts still have to approve integration plans half a century after Brown.
If the Court affirms the JCPS plan, it will signal to other school districts that not only are race-conscious assignment plans permissible, but that range plans, similar to those mandated by desegregation decrees, are also permissible means of achieving racial integration. It will also further solidify the rule from Swann and reaffirmed in Grutter that courts should defer to local governing bodies to determine how best to racially integrate.
If the Court reverses and rejects the plan, there are several avenues the Court could take. First, it could reject the JCPS plan but uphold the Seattle plan. Like in Grutter and Gratz, this result could set bookends on the rule governing racial integration of schools: permitting race-conscious choice plans but rejecting a racial target. This would still make the pursuit of racial diversity a compelling state interest, and give school districts guidance on how to structure their plans. Second, the Court could reject both plans, holding that either (a) there is no compelling state interest in maintaining racial diversity in public education; or (b) there is such an interest, but neither of these plans are properly tailored to the interest. In the case of the former, a wide range of schools will be forced to restructure their assignment plans and many may develop proxies for achieving racial integration (for instance, developing programs to achieve socio-economic diversity). This could effectively overrule Grutter (which is a possibility now that Grutter’s author, O’Connor, is off the Court). If the latter is true, schools will get little guidance on how to structure their plans, except to avoid the JCPS and Seattle models.
In total, fifty-seven parties unaffiliated with the litigation have filed amicus briefs. The parties and their points-of-view are diverse, but each is concerned with essentially the same thing: the education of America’s children and its future as a pluralistic community.
Conclusion
In this case, the Supreme Court will determine whether a student assignment plan that requires a 15 to 50 percent black enrollment is constitutionally permissible under the Equal Protection Clause. To make this determination, the Court will have to decide whether racial diversity is a compelling state interest and whether a plan that uses a range rather than a hard target is narrowly tailored to that end.Written by:
Ferve Ozturk
Jamie Rogers
Acknowledgments
The authors would like to thank Professors Sherri Lynn Johnson, Trevor Morrison, and Michael Heise for their insights into this case.
The Supreme Court will hear this case in tandem with a companion case, Parents Involved in Community Sch. v. Seattle Sch. District , which involves a student assignment plan that uses race as a tiebreaker to balance high schools that differ by more than 15 percent from the racial make up of the Seattle public school system.