Cairo Association of Teachers - Newsletter



CAT Tracks for June 29, 2007
SUPREME COURT DECISION


From the CNN.com website...


Divided court rejects school diversity plans

By Bill Mears
CNN Washington Bureau

WASHINGTON (CNN) -- A bitterly divided U.S. Supreme Court on Thursday issued what is likely to be a landmark opinion -- ruling that race cannot be a factor in the assignment of children to public schools.

The court struck down public school choice plans in Seattle, Washington, and Louisville, Kentucky, concluding they relied on an unconstitutional use of racial criteria, with the 5-4 votereflecting the deep legal and social divide over the issue of race and education.

Similar plans already in place or being proposed across the country could be in danger as a result of the ruling, which would sharply limit the power of local governments to achieve diversity using race-based criteria.

A conservative majority led by Chief Justice John Roberts said other means besides race considerations should be used to achieve diversity in schools.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts wrote.

But supporters of the school choice plans found some hope in Justice Anthony Kennedy's concurring opinion.While finding the two particular plans were unconstitutional, Kennedy said race could still be used in narrow circumstances to ensure integrated schools.

"A district may consider it a compelling interest to achieve a diverse student population," he said.

More than a half-century after the high court outlawed segregation in public schools, the justices were deeply divided over one controversial outgrowth of that decision: What role race should play, if any, in assigning students to competitive spots in elementary and secondary schools.

The cases from Kentucky and Washington revisit past disputes over race and education, stemming from the landmark 1954 Brown v. Board of Education decision.

"Before Brown, schoolchildren were told where they could and could not go to school based on color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again -- even for very different reasons," Roberts wrote.

Roberts was joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Kennedy proved the key swing vote in striking down the Louisville and Seattle plans.

Reading his concurring opinion from the bench, the 70-year-old justice said, "This nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all its children.

"A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."

But he added, "Crude measures of this sort [as illustrated in this case] threaten to reduce children to racial chits valued and traded according to one school's supply and another's demand."

Thomas took a harder stance against the choice plans: "Simply putting students together under the same roof does not necessarily mean that the students will learn together or even interact," he said. "Furthermore, it is unclear whether increased interracial contact improves racial attitudes and relations."

CNN legal analyst Jeffrey Toobin said the ruling is "going to rank with the great, important school desegregation opinions of the court's history, starting with Brown v. Board of Education in 1954."

"What this court said was even though only a few slots were determined by race, that's too many. You just simply can't consider race in deciding which school kids go to," Toobin said.

"Justice Kennedy, who was the swing vote, said maybe possibly you could do it sometimes. But clearly the message of the court majority here is that race is out as a consideration in school assignments. And a lot of districts still use it and are consideringusing it, and they're going to have to change."

Those on both sides of the issue, as well as the Bush administration, had hoped the Supreme Court would clarify when and to what lengths state and local officials can go to promote diversity in K-12 education.

In a landmark case three years ago, the justices affirmed racial quotas were unconstitutional but offered a limited but powerful endorsement of affirmative action in higher education. The Supreme Court, whose makeup has changed since the first ruling, has now ruled that legal standard does not apply in a K-12 public school setting.

While supporters on both sides of the issue seemed to agree classroom diversity is an important goal, differences remain over how to maintain it without the real or perceived consequence that some families may be unfairly discriminated against or inconvenienced.

In dissent, Justice John Paul Stevens said the majority "reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, 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."

Stevens was joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The Seattle and Louisville plans are voluntary, introduced in the years after integration of schools in many areas was managed by the courts. They were not designed as remedial efforts to achieve diversity, but to maintain it, as a reflection of the larger communities' racial makeup.

During oral arguments in December, hundreds of demonstrators -- many of them African-American college students -- marched and chanted outside the court in support of the affirmative action plans. Some carried signs such as "Equal education, not segregation."

Louisville-area schools endured decades of federal court oversight after schools there were slow to integrate. When that oversight ended in the late 1990s, county officials sought to maintain integration, requiring that most public schools have at least 15 percent and no more than 50 percent African-American enrollment. The idea was to reflect the whole of Jefferson County, which is 60 percent white and 38 percent black. Officials say their plan reflects not only the need for diversity but also the desire of parents for greater school choice.

A white parent, Crystal Meredith, sued, saying her child was twice denied the school nearest their home and had to endure a three-hour bus ride to a facility that was not their top choice. Many African-American parents raised similar concerns.

"We are here not because we didn't get our first choice, but because we got no choice," said Meredith shortly after the ruling. "I was told by the school board that my son's education was not as important as their plan. I was told I should sacrifice his learning in order to maintain the status quo."

Louisville school officials said the ruling would not affect their school assignment plan for the coming school year.

"Although the court held that some aspects of the [county's] student assignment plan do not satisfy the court's 'narrow tailoring' requirement, it is clear Justice Kennedy's concurring opinion will allow local boards of education to use certain race-conscious measures to maintain integrity in schools," said Frank Mellon, the attorney representing the school system.

In Seattle, public schools often rely on a "tiebreaker." Under the plan, begun in 1998, families can send their children to any school in their district. When there are more applicants than spaces available, and when a school is not considered "racially balanced," race is one of several "integration tiebreakers" used to achieve diversity.

A group primarily of white parents from two neighborhoods sued in 2001, saying about 200 students were not admitted to the schools of their choice, preventing many from attending facilities nearest to their homes.

One school at the center of the controversy is Franklin High. Half of its roughly 1,500 students are Asian-American, a third are African-American, and about 7 percent are Hispanic. White enrollment dropped from 23 percent in 2000 to 10 percent last year.

The Seattle diversity plan was suspended while the appeals worked their way through the courts.

From the justices' comments during oral arguments and in the various written opinions, it was clear the legal sticking point was whether those diversity efforts represented a "compelling government interest."

The Bush administration supported the parents bringing suit against the choice plans. Solicitor General Paul Clement told the justices the two plans at issue represented "very stark racial quotas." He argued they were a "clear effort to get the schools to mimic the overall community" and that other "race-neutral" means to achieve classroom diversity should be used.


From the CNN.com website...


Democratic debaters blast court's race ruling

WASHINGTON (AP) -- A historically diverse field of Democratic presidential candidates -- a woman, a black, an Hispanic and five whites -- denounced an hours-old Supreme Court affirmative action ruling Thursday night and said the nation's slow march to racial unity is far from over.

"We have made enormous progress, but the progress we have made is not good enough," said Sen. Barack Obama, the son of a man from Kenya and a woman from Kansas.

Sen. Hillary Rodham Clinton, the first female candidate with a serious shot at the presidency, drew the night's largest cheer when she suggested there was a hint of racism in the way AIDS is addressed in this country.

"Let me just put this in perspective: If HIV-AIDS were the leading cause of death of white women between the ages of 25 and 34 there would be an outraged, outcry in this country," said the New York senator.

In their third primary debate, the two leading candidates and their fellow Democrats played to the emotions of a predominantly black audience, fighting for a voting bloc that is crucial in the party's nomination process.

One issue not raised by questioners, the war in Iraq, dominated the past two debates. Queries about AIDS, criminal justice, education, taxes, outsourcing jobs, poverty and the Bush administration's response to Hurricane Katrina all led to the same point: The racial divide still exists.

"There is so much left to be done," Clinton said, "and for anyone to assert that race is not a problem in America is to deny the reality in front of our very eyes."

While the first two debates focused on their narrow differences on Iraq, moderator Tavis Smiley promised to steer the candidates to other issues that matter to black America. In turn, the candidates said those issues mattered to them.

"This issue of poverty in America is the cause of my life," said John Edwards, the 2004 vice presidential nominee.

Said Obama: "It starts from birth."

Obama criticized President Bush's No Child Left Behind program. "You can't leave money behind ... and unfortunately that's what's been done," he said.

Clinton spoke of her efforts in Arkansas to raise school standards, "most especially for minority children."

Delaware Sen. Joe Biden urged people to be tested for the AIDS virus, noting that he and Obama had done so. Cracked the Illinois senator: "I just want to make clear I got tested with Michelle," his wife, Obama said, drawing laughter from the predominantly black audience.

The debate was held at Howard University, a historically black college in the nation's capital.

Black voters are a large and critical part of the Democratic primary electorate, making the debate a must-attend for candidates seeking the party's presidential nomination.

Racial tension laid bare A half century of desegregation law -- and racial tension -- was laid bare for the Democrats hours before they met. In a 5-4 decision, the Supreme Court clamped historic new limits on school desegregation plans.

Clinton said the decision "turned the clock back" on history, and her competitors agreed.

The conservative majority cited the landmark Brown v. Board of Education case to bolster its precedent-shattering decision, an act termed a "cruel irony" by Justice John Paul Stevens in his dissent. The 1954 ruling led to the end of state-sponsored school segregation in the United States.

Obama, the only black candidate in the eight-person field, spoke of civil rights leaders who fought for Brown v. Board of Education and other precedents curbed by the high court. "If it were not for them," he said, "I would not be standing here."

Biden noted that he voted against confirmation of Chief Justice John Roberts, who wrote the majority opinion. He said he was tough on Roberts.

"The problem is the rest of us were not tough enough," he said, seeming to take a jab at fellow Democrats. "They have turned the court upside down."

All the Democratic candidates in the Senate opposed the confirmation of conservative Justice Samuel Alito, another of President Bush's nominees. Clinton, Biden and Obama voted against Roberts; Sen. Chris Dodd voted for his nomination.

New Mexico Gov. Bill Richardson, the first major Hispanic candidate, said race is about more than passing new laws and appointing new justices. "The next president is going to have to lead," he said, vowing to do so.

Dodd said "the shame of resegregation in our country has been occurring for years."

The nomination fight begins in Iowa and New Hampshire, two states with relatively few minorities. But blacks and other minority voters become critical in Nevada, South Carolina and Florida before the campaign turns to a multi-state primary on February 5.

About one in 10 voters in the 2004 election were black, according to exit polls, and they voted 9-to-1 for Democrat John Kerry. In some states, blacks make up a bigger share of the voters. In South Carolina, for example, blacks made up about 30 percent of the electorate in 2004, but were more than half of the voters in the state's Democratic primary.

Massachusetts Gov. Deval Patrick, the country's only black governor, introduced the candidates with a warning that a dispirited GOP "is not enough to elect a Democratic president nor should it be. We need to offer a more positive and hopeful vision ... to run on what we are for and not just what we are against."

Ohio Rep. Dennis Kucinich and former Alaska Sen. Mike Gravel also took part in the debate.


From the New York Times...


Justices Limit the Use of Race in School Plans for Integration

By LINDA GREENHOUSE

WASHINGTON, June 28 — With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared Thursday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student’s race.

Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a “tiebreaker” for admission to particular schools.

Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Chief Justice Roberts said such programs were “directed only to racial balance, pure and simple,” a goal he said was forbidden by the Constitution’s guarantee of equal protection.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he said. His side of the debate, the chief justice said, was “more faithful to the heritage of Brown,” the landmark 1954 decision that declared school segregation unconstitutional. “When it comes to using race to assign children to schools, history will be heard,” he said.

The decision came on the final day of the court’s 2006-7 term, which showed an energized conservative majority in control across many areas of the court’s jurisprudence.

Chief Justice Roberts’s control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Justice Kennedy agreed that the two programs were unconstitutional. But he was highly critical of what he described as the chief justice’s “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”

In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, “avoiding racial isolation” and addressing “the problem of de facto resegregation in schooling” were “compelling interests” that a school district could constitutionally pursue as long as it did so through programs that were sufficiently “narrowly tailored.”

The four justices were “too dismissive” of the validity of these goals, Justice Kennedy said, adding that it was “profoundly mistaken” to read the Constitution as requiring “that state and local school authorities must accept the status quo of racial isolation in schools.”

As a matter of constitutional doctrine and practical impact, Justice Kennedy’s opinion thus placed a significant limitation on the full reach of the other four justices’ embrace of a “colorblind Constitution” under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.

How important a limitation Justice Kennedy’s opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.

Among the measures that Justice Kennedy said would be acceptable were the drawing of school attendance zones, “strategic site selection of new schools,” and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Justice Kennedy said, because in avoiding the labeling and sorting of individual children by race they would satisfy the “narrow tailoring” required to meet the equal protection demands of the 14th Amendment.

Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Justice Kennedy’s proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.

Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. His most pointed words, in fact, appeared nowhere in his 77-page opinion.

“It is not often in the law that so few have so quickly changed so much,” Justice Breyer said.

In his written opinion, Justice Breyer said the decision was a “radical” step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. Predicting that the ruling would “substitute for present calm a disruptive round of race-related litigation,” he said, “This is a decision that the court and the nation will come to regret.”

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed Justice Breyer’s opinion. Justice Stevens wrote a dissenting opinion of his own, as pointed as it was brief.

He said the chief justice’s invocation of Brown v. Board of Education was “a cruel irony” when the opinion in fact “rewrites the history of one of this court’s most important decisions” by ignoring the context in which it was issued and the Supreme Court’s subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.

“It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision,” Justice Stevens said. He did not mention, nor did he need to, that one of the justices then was William H. Rehnquist, later the chief justice, for whom Chief Justice Roberts once worked as a law clerk.

Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.

“If our history has taught us anything,” Justice Thomas said, “it has taught us to beware of elites bearing racial theories.” He added in a footnote, “Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.”

The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle programs filed their Supreme Court appeals from the lower court decisions that had upheld the programs.

The Louisville case was Meredith v. Jefferson County Board of Education, No. 05-915, filed by the mother of a student who was denied a transfer to his chosen kindergarten class because the school he wanted to leave needed to keep its white students to stay within the program’s racial guidelines.

The Seattle case, Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, was filed by a group of parents who had formed a nonprofit corporation to fight the city’s high school assignment plan.

Because a single Supreme Court opinion resolved both cases, the decision carries only the name of the Seattle case, which had the lower docket number.

The appeals provoked a long internal struggle over how the court should respond. Months earlier, when Justice Sandra Day O’Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.

By the time the court ruled on Thursday, there was little suspense over what the outcome would be. Not only the act of accepting the appeals, but also the tenor of the argument on Dec. 4, gave clear indications that the justices were on course to strike down both plans.

The cases were by far the oldest on the docket by the time they were decided; the other decisions the court announced on Thursday were in cases that were argued in March and April. What consumed the court during the seven months the cases were under consideration, it appears likely, was an effort by each side to edge Justice Kennedy closer to its point of view.

While it is hardly uncommon to find Justice Kennedy in the middle of the court, his position there this time carried a special resonance. He holds the seat once occupied by Justice Lewis F. Powell Jr. who, 29 years ago to the day, announced his separate opinion in the Bakke case. That solitary opinion, rejecting quotas but accepting diversity as a rationale for affirmative action in university admissions, defined the law for the next 25 years, until the decision was refined and to some degree strengthened in the University of Michigan Law School decision.

Justice Kennedy was a dissenter from that 2003 decision. But, surprisingly, he cited it on Thursday, invoking it to rebut the argument that the Constitution must be always be, regardless of context or circumstance, colorblind.