Supreme Court asked to permit race-based school assignments

Policy is advanced as a way to promote diversity nationwide

February 11, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Raising the stakes on a Montgomery County schools case at the Supreme Court, a group of educational organizations has urged the justices to allow students across the nation to be assigned to schools based on their race as a way to promote cultural diversity, not segregation.

"This case," the groups argued, "presents a critical legal issue: Can a local school board take intentional steps to create a diverse learning environment?"

The friend-of-the-court brief, by the National School Boards Association and 16 other groups including the Maryland Association of Boards of Education, amounts to an attempt to convince the court that much more is at stake than a race-based transfer policy that was used in Montgomery County schools until it was struck down by a lower court.

The brief seeks to persuade the court to hear the case and to move the court beyond the era when race was routinely forbidden as a basis for school assignment because the aim was to maintain segregation. Instead, the brief urges the court to inaugurate an era in which "educating children in a diverse setting" provides a different justification for assignments based on race.

For the past decade, the court has moved increasingly to outlaw the use of race as a basis for government policies, for example in redrawing election districts and in allocating government benefits.

That trend has generated a dispute in which "racial diversity" goals have come under broad attack from conservative advocacy groups that argue for a "colorblind" society.

The court has not moved to outlaw the use of race in education, outside the segregated schools context. But cases likely to test race-based policy in education have been moving up in the lower courts, with the Montgomery County case next in line.

With the filing of the education groups' brief, that case takes on the aura of a wider-ranging effort to treat elementary and secondary schools as a form of government activity in which race-based policies that would not be permitted in other government programs would play a significant role.

The brief argued: "While the court has voiced misgivings about allowing the government to weigh race in other settings, the special context of kindergarten-through-12th grade public education raises issues that warrant review by this court."

The group contended that "it is an accepted role of the public schools to prepare America's children to participate in our democracy."

Noting that lower courts have issued "a tangled web of contradictory rulings" on whether race-based student assignments in public schools are unconstitutional, the organizations said the confusion deprives millions of school children "of important, first-hand lessons in diversity that would aid each personally and benefit the nation."

In Montgomery County, school officials had grown concerned that race-neutral school assignments were contributing to racial isolation. That is, some schools were coming to be dominated by students of one race. The school board adopted a policy forbidding student transfers to new schools if that would lead to a greater concentration of one race at the new or the former school.

That policy was challenged by the parents of a first-grader who was denied a transfer to a school in Silver Spring known for enriched science and math programs. Because he was white, moving him would have increased white concentration at that school and reduced the proportion of whites left at his neighborhood school.

The 4th U.S. Circuit Court of Appeals struck down the policy and barred the use of a student's race as the basis for granting or denying transfer.

The Supreme Court is expected to indicate next month whether it will review the Montgomery County appeal. If it agrees to do so, it will not decide the case until next winter at the earliest.

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