Saying segregation is still very much alive in public education, Hispanic commentators saw Thursday's ruling by the U.S. Supreme Court as a serious setback that is likely to do nothing to decrease racial and ethnic isolation.
After considering public school plans in Seattle and Louisville, Ky., that attempted to manage the racial diversity in their schools, the Supreme Court rejected the voluntary diversity plans of the two districts. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John Roberts wrote in the majority opinion.
The 5-4 ruling, which was met with varied reactions, applies to K-12 public education and will affect schools across the nation that are attempting to create a racial balance.
Writing a dissenting opinion in which he said the nation would someday "regret" this latest decision, Justice Stephen G. Breyer rejected the majority's thesis that mandated integration was a form of racial discrimination. "The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas in the 1950s to Louisville and Seattle in the modern day," he wrote.
Michael Olivas, University of Houston Law Center professor, said that Thursday's ruling will make it difficult for schools acting in good faith to reduce racial isolation.
Racial isolation, Mr. Olivas says, is a feature in public schooling "that particularly affects Latino children, given the segregation in housing patterns so evident."
With residential segregation on the rise, says Marta Tienda, a Princeton University professor, "options for fulfilling the spirit of (Brown v. Board of Education) and reaping the benefits of our diversity will be diminished by this decision."
The use of "socioeconomic criteria is far less efficient in achieving integration than narrowly tailored consideration of race and other factors," Ms. Tienda said.
The court found that Seattle and Louisville's plans that used race when assigning students to schools "failed to show that they considered methods other than explicit racial classification to achieve their stated goals," Justice Roberts wrote.
"Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this court's precedents and the nation's history of using race in public schools, and requires more than such an amorphous end to justify it."
Parents challenged the school districts' plans as a violation of the Equal Protection Clause of the 14th Amendment.
After being declared unitary in 2001 as a result of a formal desegregation plan, Jefferson County (which includes Louisville) implemented a "managed choice" plan that uses race as a factor in assigning students to schools. The new plan attempted to maintain black student enrollment at no less than 15 percent and no more than 50 percent at the district's schools. In 2000, when a white child was not admitted to his neighborhood school because the school needed more black students to meet its required minimum, a parent challenged the "managed choice" plan.
Seattle's school district, which is composed of 10 high schools, implemented a "tiebreaker" system in 2000 that considered race as one of various factors in student admissions to the district's high schools when there are more applicants than spaces. In response, several white and black families challenged the district's policy after students were denied admission to neighborhood schools based on race.
While the plaintiffs and the conservative majority were satisfied with the Court's decision, it was also met with opposition because of its implications.
"Our nation's public schools are more segregated than they were before the court's 1954 decision in Brown v. Board of Education," Peter Zamora, Washington D.C. regional counsel and co-chair of the Hispanic Education Coalition, said in a MALDEF press release. "MALDEF will work with local school districts to reverse this disturbing trend and ensure that schools create school integration plans that reflect our national commitment to desegregation while complying with the strict constitutional limits set forth in these cases."
Some commentators saw the most influential aspect of Thursday's decision as coming from the center – Justice Anthony Kennedy's separate opinion. While he voted with the majority, he set out a different rationale from that espoused by Justice Roberts.
Neil Siegel, a professor of law and political science at Duke University in North Carolina, called Justice Kennedy's separate opinion "a resounding endorsement of racial integration in public education while simultaneously a restriction on the ability of school districts to classify individual students on the basis of race."
"Justice Kennedy rejected Chief Justice Roberts' remarkable attempt to use Brown v. Board of Education to defeat the cause of racial integration, even while agreeing with the chief justice and (Justices Antonin Scalia, Clarence Thomas and Samuel Alito) that the two plans before the Court were unconstitutional because of their use of individual racial classifications. He insisted that there is a compelling interest in avoiding racial isolation and that a district may consider it a compelling interest to achieve a 'diverse student population,' including one that is racially diverse."
The last time the high court ruled on affirmative action in the classroom a majority upheld the plan used at the University of Michigan Law School. In 2003, Justice Sandra Day O'Connor, who has since retired, provided the fifth and deciding vote that said colleges could consider race as one factor in deciding who is admitted. But the Supreme Court did rule that a University of Michigan policy that assigned points to Hispanics, African Americans and Native Americans on an undergraduate admissions scale was unconstitutional because it was too much like a quota system.
Mr. Olivas believes that higher education will eventually be affected by Thursday's decision.
"(The court) says its holding is limited to K-12 and will not affect higher education," Mr. Olivas said. "That holding will be eroded, just as Brown has been."
