Nicole Love
 

Nicole Love, Parents Involved in Community Schools V. Seattle School District No. 1: the Application of Strict Scrutiny to Race-conscious Student Assignment Policies in K-12 Public Schools 29 Boston College Third World Law Journal 115-149, 115-121, 148-149 (2009)

Each autumn, children across the country prepare for a new school year. They gather their books, grab their lunch bags, and wave goodbye to summer as they head off to school. In Jefferson County, Kentucky, Joshua McDonald was preparing for his first day of kindergarten. Joshua and his mother Crystal Meredith had just moved into a new school district and missed the assignment period. Joshua was assigned to attend Young Elementary, but Ms. Meredith tried to transfer him to Bloom Elementary, located much closer to their home.

There was space available at Bloom, but her request for transfer was denied. The school's policy on assignments was based first on the availability of spaces and then on racial guidelines. "If a school has reached the 'extremes of the racial guidelines,' a student whose race would contribute to the school's racial imbalance will not be assigned there." Bloom had reached the extremes. Ms. Meredith received a letter stating that "[t]he office of student services disapproved the transfer request" because of its "adverse effect on desegregation compliance." Joshua was not permitted to attend Bloom because of his race. The year was 2002.

Similarly, across the country in Seattle, Washington, Andy Meeks was preparing to enter ninth grade. Jill Kurfirst, Andy's mother, attempted to enroll him at Ballard High School. The school had a special Biotechnology Career Academy. Ms. Kurfirst and Andy's teachers thought the smaller program and hands-on instruction would help Andy continue to progress, despite his attention deficit hyperactivity disorder and dyslexia. The district had a policy that permitted incoming ninth graders to rank the local high schools in order of preference. Andy was accepted into the program and Ms. Kurfirst ranked Ballard first. Despite his acceptance into the biotechnology program, Andy was not permitted to attend.

Ballard High School was oversubscribed, so the district employed a series of "tiebreakers" to determine who would be assigned to each school. Because Andy did not have any siblings attending Ballard, the first tiebreaker, the school administrators then considered the racial composition of the school and the race of the applicant, the second tiebreaker. Since Ballard was not within the district's overall white to nonwhite racial balance, the district did not assign Andy because his race did not "serve to bring the school into balance." He was denied assignment to Ballard High School because of race. The year was 2000.

Fifty years prior, in Topeka, Kansas, Linda Brown prepared for her third grade year at Monroe Elementary School. Monroe was one of the four elementary schools that Linda, a black student, was permitted to attend. Topeka, like cities in seventeen other states across the country, operated a state-sanctioned segregated school district: all white children attended one set of schools and all black children attended another.

Linda's father, Oliver Brown, wanted Linda to attend Sumner Elementary School, located much closer to the Brown residence. On enrollment day, Mr. Brown and Linda walked a few blocks to Sumner Elementary School to request that she be admitted. Linda waited outside Principal Frank Wilson's office. Principal Wilson had been expecting such an encounter. He had been warned by Kenneth McFarland, the school's superintendent, that the local NAACP chapter would seek to enroll black students in schools reserved for white children. Principal Wilson listened politely, but immediately refused.

Topeka's Board of Education was authorized by statute to segregate their public schools by race. Eight-year old Linda was not permitted to attend the "white only" Sumner Elementary School solely because of the color of her skin.

Although occurring approximately fifty years apart, Joshua, Andy, and Linda were all denied enrollment at the public school of their choice because of race. What distinguishes Joshua's and Andy's denial from that of Linda Brown? First, the color of their skin: Joshua and Andy are both white; Linda was black. Second, Joshua's and Andy's school assignments were made in an effort to maintain diversity in their schools. Linda's was denied in an effort to maintain segregation.

After a dramatic increase in integration during the civil rights era, there has been a national trend toward the resegregation of America's public schools since the early 1990s. Segregation has adverse affects on the educational development of students by undermining the benefits of diversity. However, the Supreme Court held in both Joshua's and Andy's cases that the use of race as a factor in school assignment, even for purposes of increased diversity, violated the Fourteenth Amendment to the Constitution.

The Equal Protection Clause of the Fourteenth Amendment states that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." The landmark case of Brown v. Board of Education, decided in 1954, held that Sumner Elementary School's segregation was a denial of the equal protection of the laws, a violation of the Fourteenth Amendment. The Supreme Court ruled that school districts had to allow black children, and all other "children of the minority group," to attend the same schools as white children.

Similarly, in Parents Involved in Community Schools v. Seattle School District No. 1, and companion case Meredith v. Jefferson County Board of Education, both decided in 2007, the Supreme Court held that the plans of the two school districts violated the Fourteenth Amendment by using race as a factor in school assignment. The Supreme Court held that schools could not artificially manufacture diverse student populations by considering race in school assignment.

Parents Involved is the latest decision in the Court's jurisprudence dealing with race-conscious policies in education. The decision in Parents Involved is a continuation of the Court's consistent disfavor of continued desegregation efforts and racial classifications, even when benign. Although the Court acknowledged the importance of diversity in education and did not foreclose the use of race-conscious assignment plans, Parents Involved has "severely limited the very tools school districts need to achieve integration and avoid segregation." The Court's application of strict scrutiny adopted the jurisprudence of "strict in theory, but fatal in fact" from affirmative action cases and applied it to race-conscious assignment policies.

This Note argues that the Parents Involved Court should not have applied strict scrutiny to analyze the race-conscious student assignment plans for several reasons. First, the Constitution is not color-blind: the Fourteenth Amendment's Equal Protection Clause neither proscribes nor compels a strict scrutiny analysis for all racial classifications. Second, race-conscious student assignment policies should be analyzed as an extension of the Court's desegregation jurisprudence because they are distinguishable from affirmative action programs.

Part I of this Note chronicles the Court's jurisprudence on race-conscious policies in education in four phases: desegregation, resegregation, affirmative action, and the standards of review. Part II provides an overview of the Parents Involved decision as it relates to the strict scrutiny standard used to analyze race-conscious policies. Part III argues that the Court has erred in applying strict scrutiny analysis to the race-conscious student assignment policies at issue.

. . .


The Parents Involved Court had the opportunity to affirm the promise of Brown v. Board of Education and to provide to all students the opportunity to learn in a racially-diverse environment. Instead, the Parents Involved plurality took the harsh position that integration and racial diversity, and the benefits that flow from that diversity, cannot be pursued voluntarily by local school districts. In reaching this conclusion, the Court mistakenly applied the strict scrutiny standard of review.

Applying strict scrutiny conflicts with the original intent of the Fourteenth Amendment; application of a "fatal in fact" standard of analysis is inconsistent with the Equal Protection Clause. It unnecessarily and inappropriately conflated the Court's affirmative action and desegregation jurisprudence by failing to account for the relevant differences between the K-12 sorting assignment policies and merit-based selection affirmative action programs. By applying strict scrutiny, the Court disregarded the context of K-12 schools and failed to give the proper deference, as compelled by precedent established in desegregation case law, to the authority of local school boards.

The Court's ruling in Parents Involved has taken from schools "the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty." The Parents Involved plurality is best summarized by Justice Breyer in his dissent. Speaking of the plurality that held the policies unconstitutional, he wrote:

It misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.