ED467112 2002-07-00 Constitutional Law

and Race-Conscious Policies in K-12

Education. ERIC Digest.

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Constitutional Law and Race-Conscious Policies in K-12 Education.

ERIC Digest................................................................... 1

THE CONSTITUTIONAL FRAMEWORK................................... 2

RECONCILING THE LAW.................................................... 5

CASES CITED.................................................................. 5

REFERENCE.................................................................... 6

ERIC Identifier: ED467112

Publication Date: 2002-07-00

Author: Ancheta, Angelo

Source: ERIC Clearinghouse on Urban Education New York NY.

Constitutional Law and Race-Conscious

Policies in K-12 Education. ERIC Digest.

THIS DIGEST WAS CREATED BY ERIC, THE EDUCATIONAL RESOURCES

INFORMATION CENTER. FOR MORE INFORMATION ABOUT ERIC, CONTACT

ACCESS ERIC 1-800-LET-ERIC

Nearly 50 years after the U.S. Supreme Court's decision in Brown v. Board of

Education, the racial integration of our nation's public schools remains elusive. With the

growth of immigrant populations and the movement of families from cities to suburbs,

ED467112 2002-07-00 Constitutional Law and Race-Conscious Policies in K-12

Education. ERIC Digest.

Page 1 of 7
race relations have become very complex; the minority student population of many

school districts is now the majority, and it is composed of three or more racial and ethnic

groups.

Despite the mandates of Brown to desegregate schools with "all deliberate speed,"

many school districts that were once under court order to desegregate have been

released from their obligations and are experiencing problems of resegregation (Orfield

& Yun, 1999). Voluntary efforts to address racial isolation--efforts that are not required

by a court or a settlement agreement--have been challenged as unconstitutional.

Policymakers must grapple with the growing complexities of race and an uncertain legal

landscape that may, ultimately, preclude the use of race-conscious measures in K-12

education.

This digest examines the constitutional framework that guides the use of race-conscious

policymaking in K-12 education. Despite the requirements of Brown, recent court

decisions suggest that desegregation remedies are becoming more limited and that

voluntary policies will be subject to greater scrutiny by the courts.

THE CONSTITUTIONAL FRAMEWORK

The legal framework governing racial policymaking in K-12 education reflects the

intersection of two distinct bodies of law. One body of law applies to court-ordered

desegregation remedies flowing from the Brown decision. The other applies to voluntary

programs and policies that have been challenged as unconstitutional uses of race.

Desegregation Remedies

The Brown v. Board of Education decision made clear that segregation in education is

unconstitutional. In Green v. County School Board, the Supreme Court held that

segregated systems must be dismantled "root and branch," so that desegregation is

achieved among several factors affecting educational quality, including student body

composition, facilities, staff, faculty, extracurricular activities, and transportation. The

"Green factors" have been used to craft desegregation remedies and to measure

whether a district has achieved "unitary status," a signal that court supervision is no

longer required.

Throughout the 1960s and early 1970s, the Federal courts employed a variety of

race-conscious remedies to desegregate the public schools, including busing, transfer

policies, and magnet schools, as well as numerical goals for student enrollment. In

Swann v. Charlotte-Mecklenburg Board of Education, for example, the U.S. Supreme

Court struck down race-neutral student assignment plans that produced school

segregation because of segregated housing patterns, and the Court approved busing as

a remedy.

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Beginning in the 1970s, however, the courts began paring back the scope of

desegregation remedies. In Milliken v. Bradley, the Supreme Court ruled that the courts

cannot, in most instances, impose an interdistrict remedy between a city and its suburbs

in order to integrate the schools. (The Court did rule later in Milliken, however, that a

court could order a state to pay for educational programs to repair the harm caused by

segregation.)

In Board of Education of Oklahoma v. Dowell, the Court ruled that a district satisfying

the Green factors could be declared unitary and freed from any affirmative obligations to

end segregation. In addition, the Court held that government action recreating

segregated schools would be presumed to be nondiscriminatory. In Freeman v. Pitts,

the Court went further and ruled that the Green factors do not have to be met

simultaneously for a system to be declared unitary; instead, a court could withdraw

supervision over an aspect of desegregation, one step at a time. And in Missouri v.

Jenkins, the Court found that "white flight" out of urban districts did not justify an

interdistrict remedy such as magnet schools; moreover, districts did not have to

demonstrate that the harms caused by segregation, such as lower minority student test

scores, had been corrected in order to attain unitary status.

Because of the relaxed standards, districts throughout the country have been declared

unitary and released from court supervision. An unfortunate consequence is that many

systems are experiencing resegregation. For example, in the South, which achieved

high levels of integration in the 1970s and 1980s because of court involvement, the

percentage of black students in majority-white schools in the late 1990s dropped to

levels last seen in the early 1970s; trends suggest that the percentage of black students

in majority-white schools will continue to decrease (Orfield & Yun, 1999).

Voluntary Policies and "Strict Scrutiny"

In addition to court-ordered remedies to address segregated school systems, voluntary

race-conscious policies are used to advance goals such as preventing racial isolation or

promoting diverse student bodies. These policies, like all race-conscious policies, must

comply with the equal protection clause of the Constitution and satisfy a high standard

of review known as "strict scrutiny."

The courts employ a two-part test under strict scrutiny. First, courts evaluate whether a

race-conscious policy advances a "compelling governmental interest." A compelling

interest must be especially important; one example is remedying the present effects of a

district's past discrimination. Second, courts evaluate the fit between the policy and the

interest being advanced. A race-conscious policy must be necessary to achieve the

compelling interest, and the courts typically require that a policy be "narrowly tailored" to

serve that interest. For example, if a race-neutral policy could advance an interest as

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ED467112 2002-07-00 Constitutional Law and Race-Conscious Policies in K-12

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well as a race-conscious policy, then the race-conscious policy is not narrowly tailored.

The two requirements are discussed below.

Compelling Interests. The courts have widely recognized that remedying the present

effects of an institution's past discrimination is a compelling interest. There must,

however, be a "strong basis in evidence" to prove the effects of past discrimination. It is

not enough that a district assert that there has been discrimination. The district must

provide evidence of the discrimination, and document its harmful effects through

concrete evidence, which can include testimony, written documents, and statistical

evidence of racial disparities. The Supreme Court has also ruled that remedying societal

discrimination, compared to an institution's own discrimination, is not sufficiently

compelling, because it is too broad and general (City of Richmond v. J.A. Croson Co.).

Whether a non-remedial interest can be a compelling interest is a source of conflict in

the Federal courts. Several non-remedial interests have been challenged, with mixed

results. One court of appeals has ruled that "reducing racial isolation" is a compelling

interest (Brewer v. West Irondequoit Central School District). However, a trial court in

Ohio ruled that preventing racial isolation was not compelling because the district relied

on a statistical analysis of how demographic trends might play out in the future (Equal

Open Enrollment Association v. Board of Education of Akron City School District).

The promotion of "educational diversity" in higher education, an interest that was upheld

by the Supreme Court in Regents of the University of California v. Bakke, has been

advanced as an interest in K-12 settings. For example, race-conscious admissions

policies for selective public schools have been justified by a Bakke-type interest in

promoting diversity. However, the courts have not ruled squarely on the issue, largely

because there have been recent challenges to the Bakke decision itself. A number of

courts have assumed that an interest in promoting diversity is compelling, and then

have gone on to strike down policies because they are not narrowly tailored.

Narrow Tailoring. Although the courts do not always apply the same test of narrow

tailoring, they generally weigh several factors, such as the necessity of the policy, the

availability of alternative race-neutral policies, the duration of a policy, the relationship

between numerical goals and the relevant student population, the flexibility of the policy,

and the burden imposed by the policy on third parties (United States v. Paradise).

The narrow tailoring inquiry has become increasingly important because several courts

have assumed that interests such as a Bakke-type interest in diversity are compelling,

and then struck down policies as not being narrowly tailored. These courts characterize

voluntary policies as forms of "racial balancing" that are inadequate alternatives to

race-neutral policies and impose too great a burden on non-minority students

(Eisenberg v. Montgomery County Public Schools; Tuttle v. Arlington County School

Board; Wessman v. Gittens). One court, however, has upheld a voluntary interdistrict

transfer policy on narrow tailoring grounds, finding that "there is no more effective

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Education. ERIC Digest.
means of achieving [the goal of reducing racial isolation] than to base decisions on

race" (Brewer v. West Irondequoit Central School District).

Except for remedial cases, the courts will not uphold quotas or set-asides as narrowly

tailored. However, a plan that does not use race in a rigid or mechanical way and is a

well-considered alternative to a race-neutral policy is more likely to satisfy strict scrutiny.

Much like the higher education admissions policy upheld in Bakke, K-12 policies that

employ race along with other relevant factors (such as socioeconomic background or

geographic ties) may stand the best chance of being upheld by the courts.

RECONCILING THE LAW

The use of race in K-12 educational policy remains problematic. Policies that might be

legal in one setting (racial balancing to remedy past segregation) can be

unconstitutional in other settings (the same policies employed in a voluntary context).

The law in this area continues to evolve as new policies are adopted and new cases are

litigated. The Supreme Court has chosen not to take up appeals from the recent K-12

cases challenging voluntary race-conscious policies, but as cases percolate in the lower

courts, the Court may ultimately take an appeal and provide greater guidance to the

courts and to policymakers. The Court is also likely to revisit its decision in the Bakke

case, and should provide direction for K-12 policymakers. But until the Supreme Court

does provide definitive guidelines, the use of race in K-12 education will remain

uncertain.

CASES CITED

Brewer v. West Irondequoit Central School Dist., 212 F.3d 738 (2d Cir. 2000).

Brown v. Board of Education, 347 U.S. 483 (1954).

Board of Educ. of Oklahoma v. Dowell, 498 U.S. 237 (1991).

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir.), cert. denied,

529 U.S. 1019 (1999).

Equal Open Enrollment Ass'n v. Board of Educ. of Akron City School Dist., 937 F. Supp.

700 (N.D. Ohio 1996).

Freeman v. Pitts, 503 U.S. 467 (1992).

Green v. County School Board, 391 U.S. 430 (1968).

Milliken v. Bradley, 418 U.S. 717 (1974).

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Milliken v. Bradley II, 433 U.S. 267 (1977).

Missouri v. Jenkins, 515 U.S. 1139 (1995).

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

Tuttle v. Arlington County School Bd., 195 F.3d 698 (4th Cir. 1999), cert. dismissed, 529

U.S. 1050 (2000).

United States v. Paradise, 480 U.S. 149 (1987).

Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998).

REFERENCE

Orfield, G., & Yun, J. (1999). Resegregation in American schools. Boston: The Civil

Rights Project, Harvard University. (ED 445 171). Available: http://www.

law.harvard.edu/civilrights/publications/resegregation99/resegregati on99.html

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This Digest was developed by the ERIC Clearinghouse on Urban Education, with

funding from the Office of Educational Research and Improvement, U.S. Department of

Education, under contract no. ED-99-CO-0035. The opinions in this Digest do not

necessarily reflect the position or policies of OERI or the Department of Education.

Title: Constitutional Law and Race-Conscious Policies in K-12 Education. ERIC Digest.

Note: Digest Number 175.

Document Type: Information Analyses---ERIC Information Analysis Products (IAPs)

(071); Information Analyses---ERIC Digests (Selected) in Full Text (073);

Available From: ERIC Clearinghouse on Urban Education, Institute for Urban and

Minority Education, Box 40, Teachers College, Columbia University, New York, NY

10027. Tel: 800-601-4868 (Toll Free); Tel: 212-678-3433; Fax: 212-678-4012; e-mail:

eric-cue@columbia.edu. For full text:

http://eric-web.tc.columbia.edu/pubget.asp?show=1.

Descriptors: Constitutional Law, Court Litigation, Educational Legislation, Educational

Policy, Elementary Secondary Education, Equal Education, Policy Formation, Racial

Factors, School Desegregation

Identifiers: ERIC Digests

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