Court rejects transfer of pupil for diversity

Justices refuse appeal of Montgomery case

March 21, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Rejecting an appeal by Montgomery County school officials, the Supreme Court hinted yesterday at a new unwillingness to allow students to be assigned to schools on the basis of race -- even to prevent new tipping toward segregation.

The court's action, although not a full-scale ruling, has national implications. The case tested the authority of school officials in any community to use pupil transfer policies to ensure that schools do not shift too far toward one race in their enrollment.

In a brief order, with no explanation, the court turned aside an appeal by the Montgomery County Board of Education seeking to revive a transfer policy nullified by the 4th U.S. Circuit Court of Appeals in Richmond last year.

Under the policy, a student's attempt to transfer could be blocked if too few students of that child's race would be left in the former school, or too many of that race would be assembled in the new school -- a result that officials said threatened "racial isolation."

The educational theory behind such policies is that students benefit academically from racial diversity in their schools, and racial isolation undermines that goal.

"We are obviously distraught that nearly a half-century of progress will end in Montgomery County and elsewhere around the U.S. in recognizing the benefits of diversity among children in our schools," said Patricia B. O'Neill, the Montgomery County board of education president.

She added: "We have worked very hard to avoid creating racially isolated schools, and the action by the Supreme Court essentially ties our hands."

The court's denial of review would mean that 7-year-old Jacob Eisenberg of Silver Spring could transfer next fall to a new school in the county where he could take part in a special science and math magnet program.

His family, however, is buying a house in another Washington suburb, Virginia's Arlington County, according to Jeffrey D. Eisenberg, Jacob's father. Jacob will be entering the third grade.

The father said the court's action was "consistent with previous decisions" against the use of race in government programs. "Montgomery County will no longer be able to ignore this guidance," Eisenberg said.

But he added that the county "has lawful options available for promoting diversity in its public schools, should it choose to use them" -- such as more magnet programs.

Jacob, who is white, was not allowed to transfer from Glen Haven Elementary to Rosemary Hills Elementary because white enrollment has been dropping at Glen Haven while gaining at Rosemary Hills. The family sued and won the right to Jacob's transfer. School officials then took the case to the Supreme Court.

Julie Underwood, general counsel of the National School Boards Association, said school officials were "profoundly disappointed" by the court's order. They had been hoping the court would allow them to shift students by race for educational reasons.

"This does not move us any closer to achieving that," she said.

She said the court's action leaves intact an appeals court ruling that "means essentially the end of racial consideration" in public school student assignments in the states covered by the appeals court: Maryland, Virginia, West Virginia, and North and South Carolina.

In Montgomery County, student transfers now will be allowed only for reasons of hardship, the presence of a brother or sister at the school, or during a move to a higher-level school -- elementary to middle school, for example.

Although Montgomery County schools, like those throughout Maryland, formerly were racially segregated by law, the county chose to end segregation voluntarily. Thus, it had never faced a court order to shift students to end the official separation by race.

The Supreme Court has allowed formerly segregated school districts to use race-based student transfers to break down segregation. But it has never ruled on the use of race when that is done to achieve or maintain racial diversity in public schools. That was the issue in the Montgomery case.

Still pending before the court is a similar case from Arlington County, Va., where a race-based student admissions policy was struck down by the appeals court in Richmond.

In a separate case, the court agreed to decide, in a Washington state case, whether it is unconstitutional for a state to continue holding a violent sex criminal after that individual haas served a prison sentence, if the state does not provide medical treatment.

The court also said it would review the legality of reinstating a worker to a safety-sensitive job -- such as truck driver -- if that worker has tested positive for drug use and wins a labor arbitration grievance to regain the job. That issue arises in a West Virginia case.

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