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After court’s decision, rethinking school desegregation 99,079 87,515


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55 — and Justice Samuel A. Alito Jr., now 60, a game-changing re- placement for the more moderate Sandra Day O’Connor. Liberals sounded a call to


arms, and at the end of the first full term of Roberts and Alito together, Justice Stephen G. Brey- er signaled his unease with a comment that summed up the left’s point of view on the new court. “It is not often in the lawthat so


few have so quickly changed so much,” Breyer said. But if the law changes quickly,


the real-life implications of a Su- preme Court decision can take years to unspool. The school desegregation case provides a way to examine the question that always follows one of the court’s major social policy decisions: What happens next?


The decision’s impact The impact of the decision,


which directly involved schools here and in Seattle and set rules for school boards across the na- tion, already has been notewor- thy. Seattle has mostly aban- doned efforts to force diverse classrooms; it has returned to a system of neighborhood schools augmented by magnet schools and new educational programs scattered throughout the city. After the ruling, the Bush ad-


ministration, which supported the challenges to the plans in Seattle and Louisville, warned other local school officials to be wary of assignment plans that relied on race. School attorneys advised their boards that such plans were sure to be challenged. The message was reinforced when conservative legal groups forced changes in school assign- ments in places as diverse asNew York City and Beaumont, Tex. The decision was cited when


courts struck down teacher-as- signment plans based on race in Memphis and Cincinnati. But Louisville, along with a


number of other like-minded sys- temsacross the country, is betting that using socioeconomic factors, not just race, will help maintain diverse schools and meet the Su- preme Court’s requirements. Those who have battled the


school system here say it is noth- ing more than an end run around the court’s decision, a misguided experiment by school officials who should be focused on the bigger goal of improving educa- tion. Tiffany Arnold is among the


parents who sued the board of education in Jefferson County — whichincludesLouisville—when her child was initially assigned to a school she did not want. “I still haven’t heard of a bene-


fit forany child being put through this,” Arnold said recently at a lunch with her fellow challengers, just after a judge ruled that state law does not guarantee them a spot in the school closest tohome. “We live already in a neighbor- hood that is diverse. If they could shed some light onhowthis helps anyone, maybe we wouldn’t be as angry as we are.” But school Superintendent


Sheldon Berman, who started his job days after the 2007 Supreme Court decision, said he is con- vinced that a school system can- not be successful for all children without diverse classrooms. If Louisville's plan is more costly andcomplex, he said, it is because of a flawed and doctrinaire court decision that ignored the conse- quences. “If we’re going to create a vital


democracy, and see our schools as the seeds of that democracy, we need schools that maintain diver- sity,” Berman said in a recent interview. “And I think the court missed


that. I thought the Roberts deci- sion was extraordinarily narrow, and unrealistic about the real circumstances in schools.”


A new look at race That the court even accepted


the case showed that something different was underway. Just months earlier, when O’Connor was still on the court, the justices had declined to review a case from Massachusetts that raised identical questions about race and school assignments. But after Alito replaced O’Con-


nor, the court agreed to review the challenges to the school-as- signment rules in Seattle and Louisville. Both used race insome instances, and both had been upheld by separate federal ap- peals courts. Louisville’s case was particu-


larly striking. From 1975 to 2000, the system was under a federal court order to desegregate its schools. When the court decided that had been accomplished, school officials voluntarily con- tinued with the race-conscious plans so that the progress made would not be lost. It was a point of civic pride to


The breakdown


Jefferson County Public Schools demographics (2009)


students in 155 schools 849 buses miles driven per day 60, 755 students transported twice a day


52.9 percent white 36.6 percent African-American 4.7 percent Hispanic 3.2 percent “other” 2.5 percent Asian 0.1 American Indian


53.7


percent of students qualify for free or reduced-price meals


The student assignment plan struck down as unconstitutional by the Supreme Court in 2007: Assigned students to schools based on race and required each school’s student body to be more than 15 percent and less than 50 percent African American. Parents were allowed to request a school, and about 90 percent received their first choice.


The newstudent assignment plan: Assigns students based on where they live rather than on race. Requires schools to have 15 to 50 percent of their students drawn from neighborhoods that have a higher- than-average minority population and lower-than-average income and educational attainment. It is being implemented first in elementary schools, and about 80 percent of parents received their first or second choice.


barnesb@washpost.com


make sure that the combined city and county schools not be seen as segregated, said John K. Bush, a Louisville lawyerwhofiled a brief with the court on behalf ofMayor Jerry Abramsonand GreaterLou- isville Inc., the city’s chamber of commerce. Bush, president of the local


Federalist Society, and others in Louisville understood they were dealing with a changed court,and tried to frame the argument in terms theyhopedwouldappeal to conservatives: that local officials should make choices about how to run the schools. But Ted R. Gordon, a local


lawyer who has sued the school board on numerous occasions over the policy, said that could not overcome the Constitution’s guarantee that a person’s race not be the determining factor in gov- ernment decisions. The court agreed. Five justices


said it violated the Constitution to look at an individual student’s race inmakingassignments. Rob- erts wrote that it was the logical extension of the court’s landmark desegregation ruling, Brown v. Board of Education. “Before Brown, schoolchildren


were told where they could and could not go to school based on the color of their skin,” Roberts wrote. “The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.” Justice Clarence Thomas, the


court's only African American, agreed. He denounced govern- ment’s “racial paternalism” even if for worthy motives. “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.” The court’s liberals were livid, especially at the comparison to Brown. Breyer responded that it was a “cruel distortion of history” for Roberts to say that “efforts to continue racial segregation are constitutionally indistinguish- able from efforts to achieve racial integration.” But somewhere between those


two poles—as is often the case— was Justice Anthony M.Kennedy. He voted with the conservative majority to forbid making deci- sions based on an individual’s race, but he described Roberts’ command to stop considering race as simplistic. “Fifty years of experience since


Brown v. Board of Education should teach us that the problem before us defies so easy a solu- tion,” he wrote. Schools had a compelling in-


terest in promoting diversity, he said. “Race may be one compo- nent of that diversity, but other demographic factors, plus special talents and needs, should also be considered,” Kennedy said. On the day of the decision, the


crawl at the bottom of the CNN screen informed Pat Todd, Louis- ville’s longtime school-assign- ment director, that the plan she had worked on for years was unconstitutional. “My initial re- action was complete horror,” she


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Danika Williams, 14, finds her bus for the ride home after the first day of school at Fern CreekHigh School in Jefferson County,Ky.


recalled recently. But when the school board’s


lawyers began reading the 185- page ruling in Parents Involved in Community Schools v. Seattle and Meredith v. Jefferson County Board of Education — they real- ized that Kennedy’s opinion pro- vided a road map for the future.


An alternate approach It was a road many school


systems had already taken, hav- ing already “seen the handwriting on the wall” that using race alone in making school assignments was not a long-term option, ac- cording to the Century Founda- tion’s RichardD. Kahlenberg. School systemsin theWashing-


ton area, for instance, have been forbidden since the 1990s to rely only on race, the result of a ruling from theU.S. Court of Appeals for the 4th Circuit in Richmond. The number of school systems


using socioeconomic factors to assign students has grown from a


handful to about 80 in the past decade, Kahlenberg said, serving nearly 4.2 million schoolchildren. And the Obama administration’s Education Department has sig- naled interest in such methods, giving small grants to systems looking to develop diversity pro- grams that comply with the court’s decision. Louisville's new plan splits the


county into two geographic dis- tricts — one having higher con- centrations of minorities, lower incomes and less educational at- tainment — and requires each school in the district tohave amix of students from both. Parents choose four to six


schools as possibilities for their children, but about 20 percent do not receive their first or second choices. That has led to two un- successful lawsuits and plenty of angry parents. Belinda Abernethy is one. Her


5-year-old boy was assigned to a kindergarten six miles from their


home. He would have passed an elementary school less than a mile away just to get to the bus stop.He faced a one-hour bus trip from there, and Abernethy decid- ed to teach him at home rather than put him on the bus. She said school officials told


her they couldn’t build a class- roomat a school of her choice “for one little boy,” but they designed a bus route just for him. And school-assignment direc-


tor Todd acknowledges that one irony of the new system is that schools deemed integrated under the old racial classifications are no longer considered diverse un- der the geographic criteria. That means, for instance, that middle- class African American children at an integrated school at one end of the county may be sent to a poor, inner-city school to achieve geographic balance. Berman agrees with other na-


tional experts that promoting di- verse schools is one of the best ways to improve the educational experience. He has the strong backing of the business commu- nity and the Louisville Courier- Journal'’ editorial board. But he acknowledges that there could be trouble ahead. “I look at school district after


school district that has given up on attempts to desegregate, and I think that foreshadows problems for us,” he said. One could be political. Wake


County, N.C., which includes Ra- leigh, was a leader in using socio- economic factors to bring diversi- ty to its schools. But the public grew disenchanted with con- stantly shifting school boundar- ies, and a newly elected school board is considering getting rid of


A7


the system. Jefferson County School Board


Chairman Debbie Wesslund sup- ported the newplan but is feeling the pressure in Louisville. She’s up for reelection in November, and two of the three candidates whooppose her are building their campaigns on opposition to the newschool-assignment plan. “There was no real opposition


when we were designing the plan,” Wesslund said in a recent interview. “But a great idea like diversity can get damaged by the reality of having to try to imple- ment something.” She added: “We’ve got to look


at the plan objectively and see if it is helping student achievement. That’s the bottom line.” The other potential problem


ahead is legal. Berman thinks the system’s newplan is better, but he acknowledges that it is still open to challenge. The Supreme Court’s decision hinted at what schools can do to diversify with- out violating the Constitution, butat this point the school system is relying only onKennedy’s opin- ion.


“Because it is a 4-4-1 decision,


we sit on a pinnacle, a question mark,” he said. “The lack of unity that schools have amandate to do this makes it even harder.” barnesbob@washpost.com


Evolution of the court Since John G. Roberts Jr. became chief justice five years ago, focus has been on the Supreme Court’s changing makeup and shifting ideology. In the coming months, The Washington Post will examine the real-world consequences of the court’s rulings in communities across the nation.


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