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School Lawyers Debate Supreme Court's Race Decision

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The U.S. Supreme Court’s major decision from last year on race in K-12 education is still being debated among educators, lawyers, and others.

That much was clear during the opening session of the National School Boards Association’s Council of School Attorneys meeting here in Orlando. The court’s decision in Seattle School District v. Parents Involved in Community Schools was the basis for a sharp, but civil, 90-minute discussion.

“Our nation is not yet color blind,” said Anurima Bhargava, the director of education practice for the NAACP Legal Defense and Educational Fund in New York City. She stressed the portions of Justice Anthony M. Kennedy’s key concurring opinion that left the door open for public schools to consider race.

“Justice Kennedy took some time to say race matters,” she said. (The LDF has issued a manual for interpreting the decision.)

Roger Clegg, the president and general counsel of the Center for Equal Opportunity in Washington, urged educators to follow the majority/plurality opinion of Chief Justice John G. Roberts Jr., which struck down the race-conscious student assignment policies in the Seattle and Jefferson County, Ky., school districts.

“The safest thing to do is ignore race,” Clegg said.

Carl A. Gallagher, an education lawyer in Kansas City, Kan., said that from a practical perspective, the high court’s Parents Involved ruling has settled relatively little with regard to which race-conscious policies schools may adopt.

“If any of you can tell me what plan Kennedy would approve, please tell me,” he said to the school attorneys gathered at the sumptuous Royal Pacific Resort at Universal Orlando. “I can’t give a school district good solid advice on this.”

The Council of School Attorneys' seminar program continues over the weekend, then segues into the much-larger annual meeting of the National School Boards Association. A highlight of that is Saturday’s scheduled keynote address by retired Justice Sandra Day O’Connor, who was not on the court when the Seattle and Jefferson County cases were decided.

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Mark, are you planning to do a write up of Justice O'Conner's remarks? If not, I really hope you consider it if you are still in town for it tomorrow. I would really liked to have been there for that but with AERA earlier this week, it just was not possible so I would really appreciate it if you let us who couldn't make it know what she said.

I saw largely the same confusion among scholars at AERA this week, but the educational law specific scholars seem pretty intent on finding a multitude of characteristics that implicate race without actually using race. They seem to think they can do an end run around this ruling in a fairly short period of time. Exactly how to do it they don't know quite yet, but they seemed pretty confident there was a way. We just need to start doing the research on how exactly to get as close as we can to race without actually touching it.

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