Last week, the Montgomery County, Md., school board voted unanimously to appeal its court loss to the Supreme Court. For now however, school boards must conduct themselves in a legal environment of uncertainty. All that's clear is that many of the nation's courts are rethinking what policies are acceptable. Gone are the days when the courts aggressively mandated integration through forced busing or elaborate magnet school programs. Nowadays, the courts are more likely to cast a critical eye at school policies that have enjoyed popular use for years.
Legal experts point to a number of factors at work.
An early influence was a series of Supreme Court decisions earlier this decade that put stricter limits on the use of affirmative action, and made it easier for school districts to free themselves from court-supervised desegregation plans. In 1996, for example, the 5th U.S. Circuit Court of Appeals found the University of Texas Law School's use of racial quotas in its admissions process unconstitutional. School boards that are not under court-supervised desegregation orders are particularly vulnerable to this new legal environment, says NSBA Staff Attorney Edwin Darden. While under court order, school districts can take into account a student's race because they are expected to remedy old segregationist practices. But without institutional racism to combat, the courts are asking school boards to justify the continuation of race-conscious policies.