School districts want court to clarify race-based policy

Two in D.C. area say legality in assigning pupils, teachers in doubt

January 09, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Montgomery County, Md., and Arlington County, Va., upscale suburban neighbors that have left behind their harsh pasts of racial segregation, are out in front in a new constitutional controversy over race in the public schools.

The school boards in those two counties just outside Washington, on opposite sides of the Potomac River, are trying to get the Supreme Court to clarify the legality of assigning students -- or teachers -- to public schools based on their race.

Twice in the past two years, similar efforts came to nothing. Civil rights groups -- worried that the court would use such a case to bar any use of race to support educational policy -- headed off those appeals.

Undaunted, the two boards are taking the risk that they will run afoul of the court majority's strong -- and apparently still growing -- skepticism about race as a deciding factor in any government program.

Montgomery County school officials have filed an appeal, trying to save a race-based student transfer policy that was nullified in a sweeping opinion by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Ordinarily, students in the county are assigned to schools based on where they live. Parents may seek to have their children transferred to other schools, but transfers are denied if they would contribute to racial isolation at the school being left or the one being entered.

"The transfer policy does not correct any past constitutional violations," the circuit court said, and thus amounts to unconstitutional "racial balancing" for its own sake.

Arlington County's school board, which lost in the same court, plans to file an appeal this month. The county has used race as one of three factors in choosing which students may attend three Arlington public schools popular for using a traditional approach to education. Race is the only factor nullified by the appeals court.

The Montgomery case, emerging as the leading test case, is being watched by school boards across the nation. The Maryland Association of Boards of Education will join the National School Boards Association in urging the Supreme Court to hear that case.

"This is one of the most important school cases in years, if not one of the most important since Brown" vs. Board of Education in 1954, says Edwin C. Darden, a staff attorney for the National School Boards Association. "The Montgomery case is one of the best cases around. There are too many questions out there about what you can do, and when, on race. The best approach is to get some guidance."

Darden said no data exist on how many districts use race in assigning students, but the practice is widespread, particularly in large suburban and urban districts.

The Montgomery County board's appeal to the court said that public schools face a dilemma: If they don't act to stop racial isolation, they will get sued; if they do, and base their actions on students' race, they will get sued.

"Recent decisions in the lower federal courts are pulling hard on one side of this dilemma and striking down any voluntary race-conscious school district activity in student assignment," the board's lawyers contended.

Though the Supreme Court has issued repeated rulings over the past decade against public policy based on race, it has not said whether it will do the same when such a policy is followed in student or teacher assignments.

The Montgomery and Arlington cases, though involving race-based student assignments or admissions, are not throwbacks to the decades-long effort to remedy forced segregation of schools. Segregation by law of public schools throughout both states became unconstitutional with the Brown decision 45 years ago, so no remedy for that is needed.

But, if the Supreme Court will allow the government to use race as a deciding factor only to cure intentional racial discrimination, that could scuttle a widening movement to create or keep "racial diversity" in public education when there is no intentional race bias to be cured.

To illustrate how the race factor in elementary, middle and high schools is changing, consider the situation -- before and now -- at a Montgomery County school that figures prominently in the new school board case: Rosemary Hills Elementary in Silver Spring, just inside the Capital Beltway.

In 1980, black parents of Rosemary Hills pupils protested that school officials were allowing white pupils to transfer out, threatening to take the school back to the days when the races were formally separated in county schools. Rosemary Hills was in a neighborhood that was then shifting from a white to a black majority.

As a result of that complaint, the county school board began controlling transfers partially based on a pupil's race, to head off racial isolation. The board's policy is an outgrowth of that effort.

Now, Rosemary Hills is a magnet school, offering enriched programs in math and science, and it is popular -- for pupils of all races -- to transfer there.

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