by Stuart Taylor Jr.

A Different Way to Integrate Schools

Is the Supreme Court about to kill all hope of racially integrating public schools? You might think so, based on the reactions of civil-rights groups, editorial writers, and others to two cases argued before the justices on Monday. They involve programs adopted by school boards in the Louisville, Ky., area and Seattle to promote racial balance in their schools despite segregated housing patterns.

The five more-conservative justices seem poised to strike down both of these plans and to ban—or severely restrict—consideration of any student's race in deciding what school he or she may attend. But the news is not all bad for those of us who share the four liberal justices' sense that more racial integration would give many students better educations and foster interracial understanding and social cohesion.

There is another—perhaps better—way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students' socioeconomic status in making school assignments and to give underprivileged students—who are disproportionately black or Hispanic—the opportunity to attend middle-class schools.

Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.

Such socioeconomic integration is actually more effective than pure racial balancing at improving the academic performance of poor children of all races, studies show. "Educational research suggests that the basic damage inflicted by segregated education comes not from racial concentration but the concentration of children from poor families," Harvard professor Gary Orfield, a leading advocate of racial integration, wrote.

And in many areas, "socioeconomic integration also will produce a sizable amount of racial integration," according to "A New Way on School Integration," a recent paper by Richard D. Kahlenberg of the Century Foundation. He has long been a leading advocate of considering economic status in school assignments and college admissions alike.

To be sure, in some places socioeconomic integration and magnet schools will achieve less racial integration than overtly race-based student assignments, which Kahlenberg would keep as a last-resort option.

But even race-based assignments can produce only so much integration, given political and geographical realities. The Seattle program, for example, has done almost nothing to relieve minority isolation at the city's two least integrated high schools, which were and are 90 percent nonwhite.

More to the point, a decision ruling out race-based student assignments would in no way restrict class-based assignments, even when the main motive is to use class as a rough proxy for race.

The same is true on the analogous issue of affirmative action in university admissions. There is much to be said for replacing race-based preferences with class-based preferences for the best-performing low-income applicants, many of whom are black or Hispanic. Such class-based preferences pose no constitutional problem, are consistent with merit selection, and enjoy far greater popular support than racial preferences.

To understand why socioeconomic preferences will be the next big thing in school assignments—and perhaps in university admissions—let's look at where the Louisville and Seattle cases fit into the tortured history of race relations in America and where they seem likely to lead.

Like the rest of the South, Louisville and its suburbs, which together make up Jefferson County, once mandated official segregation of black and white students at all levels as part of a system of racial oppression of the descendants of slaves.

In the wake of Brown v. Board of Education, the Jefferson County schools were put under a judicial decree in 1975 mandating countywide busing and other means to end official segregation and to eradicate its effects. In 2000, a judge declared that this had been achieved and ended the desegregation decree.

But because segregated housing patterns persist, a simple return to neighborhood schools would have looked a lot like resegregation. To avoid that, the county school board voted in 2001 to consider race in student assignments.

The program seeks to keep the proportion of black students—34 percent countywide—at no less than 15 percent and no more than 50 percent in each school, from kindergarten through 12th grade. This includes denying requests by whites (or blacks) to transfer to schools in which blacks already number fewer than 15 percent (or more than 50 percent) of the student body.

The mother of a white kindergarten student who was denied a transfer sued for violation of her son's right to equal protection of the laws and has now taken her case to the Supreme Court.

Seattle has no history of official segregation. But to overcome the effect of segregated housing patterns, it adopted a voluntary plan to integrate the white 40 percent of its high school students with the nonwhite 60 percent.

Students may choose among the city's 10 high schools. But admission to the most popular schools, which are oversubscribed, is determined by "tiebreakers," including race. Schools that are at least 55 percent white give preference to nonwhite applicants, and those that are at least 75 percent nonwhite give preference to whites. A group of parents challenged this as a denial of equal protection to all students rejected on account of race. The policy has been suspended until the litigation is resolved.

Two federal appeals courts upheld the Jefferson County and the Seattle plans, and a third upheld a similar plan in Lynn, Mass. The Lynn and Seattle decisions included concurrences by two of the nation's most thoughtful judges, both moderate-to-conservative Reagan appointees.

Michael Boudin of Boston and Alex Kozinski of Pasadena, Calif., stressed that the Lynn and Seattle programs, respectively, were more benign than any of the racial classifications that have previously come before the justices. They do not oppress blacks, as did old-fashioned official segregation. Nor do they give blacks or others a systematic edge over whites, as do racial affirmative-action preferences. Nor do they displace merit selection with preferences for less-qualified over better-qualified applicants.

Rather, Kozinski wrote, the Seattle plan "gives the American melting pot a healthy stir without benefiting or burdening any particular group," for the sake of "teaching children, during their formative years, how to deal respectfully and collegially with peers."

The Supreme Court declined last year to review the Lynn case. Then Justice Samuel Alito succeeded the retiring—and more liberal—Justice Sandra Day O'Connor. That set the stage for the Court's vote in June to review the Jefferson County and Seattle plans.

During Monday's oral arguments, the four more-liberal justices were passionate in defending race-based student assignment plans. They also stressed the irony, in the Louisville case, of the notion that the Constitution now prohibits a Southern school board from voluntarily continuing race-based student assignments that had until recently been constitutionally required.

"How can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the black children out of the school?" asked an obviously exasperated Justice Stephen Breyer.

But the color-blind conservative approach to these cases is not as perverse as portrayed by liberal critics. Rejecting an applicant based on his or her race, however benign the purpose, perpetuates the poison of race-based decision-making. It also flies in the face of past declarations of principle such as O'Connor's assertion, in a 2003 decision involving law school admissions, that "outright racial balancing" is "patently unconstitutional."

Justices Anthony Kennedy and Antonin Scalia also worried that upholding the Jefferson County and Seattle programs might tempt black-dominated or Hispanic-dominated school boards elsewhere to benefit black or Hispanic students at the expense of whites.

Far-fetched? Consider the mind-set that produced the following assertions, which were posted on the Seattle schools' Web site until they provoked an outcry a few months ago: "Cultural racism" includes "emphasizing individualism as opposed to a more collective ideology," "defining one form of English as standard," and "having a future time orientation." And only whites can be racists.

In any event, for better or worse, the Jefferson County and Seattle programs appear doomed. That leaves socioeconomic integration as the most effective way lawfully to foster racial integration.

And here's the good news, Kahlenberg says: "This is not just a clever proxy for race. Black kids don't do better sitting next to whites, but poor kids do better in middle-class schools, where they are surrounded by supportive peers, active parents, and good teachers."

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