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Citizen's Commission On Supreme Court Decision: Deseg Not Outlawed

Here's an email from CCCR honcho Dianne Piche that highlights the idea that yesterday's decision doesn't make it illegal or impossible to promote school integration:

"All programs that consider race in order to foster diversity have NOT been outlawed. The votes were 5-4 against the Seattle and Louisville school districts AND 5-4 in favor of legal principles favoring diversity. This so-called “split court” is not unlike the famous “Bakke” decision in the late 1970s, where the Court struck down an affirmative action policy with respect to admissions to the University of California-Davis medical school, while at the same time setting forth legal principles enabling some forms of affirmative action to be preserved."

Read the full email below [a letter to Piche's grad students].

The full email [a letter to Piche's grad students] :

Dear students,

It is truly unfortunate that our class ended the day the Supreme Court handed down these very important and historic decisions. As you know, I had hoped we would have been able to discuss them in class and think together about implications for various race-conscious and diversity measures in the public schools. Nevertheless, for those of you interested in learning more about them, I am providing you with some links and resources, in addition to my own summary:

First, for those brave souls interested in reading the full opinions, they are posted on the NAACP-LDF’s website (link below). While they are not light reading, I would encourage you all to read some or all of these opinions, particularly Justice Kennedy’s concurring opinion which, in the near term, is the most useful. The strongly divergent views in Chief Justice Roberts’ opinion and in the dissent by Justice Stevens are extremely important in the long-term for all of us – as educators, parents, citizens. And how these views evolve (or resolve) with even a one-member change in the composition of the Court will have lasting impacts on the education of today’s generation of K-12 students. I would further suggest it is also important to ensure some discussion of this “sea change” in the law since Brown and Swann in social studies classes at the middle and high school levels.

In addition, you may be interested in reading some of the differing views of the Court’s decisions today:
www.civilrights.org (Leadership Conference on Civil Rights – includes LCCR’s amicus brief and other materials on diversity in schools)
www.pacificlegal.org (Pacific Legal Foundation – argued against the districts and in support of the students challenging the integration policies)

Finally, the NSBA’s Legal Clips has a short summary I will forward separately.

The bottom line: All programs that consider race in order to foster diversity have NOT been outlawed. The votes were 5-4 against the Seattle and Louisville school districts AND 5-4 in favor of legal principles favoring diversity. This so-called “split court” is not unlike the famous “Bakke” decision in the late 1970s, where the Court struck down an affirmative action policy with respect to admissions to the University of California-Davis medical school, while at the same time setting forth legal principles enabling some forms of affirmative action to be preserved.

This is what the court today did in a nutshell: By a 5-4 vote, the Court struck down the specific integration plans at issue in Seattle and Louisville. In so doing, as Ted Shaw states below, the Court narrowed options available to school districts wishing to create or maintain diverse schools. This portion of today’s decisions was applauded by legal conservatives and denounced by most civil rights advocates.

On the other hand, Justice Kennedy, a “swing vote,” agreed with the result – that is, that the two districts’ plans before the Court went too far in their use of racial criteria – but he did not go as far as the conservative wing of the court in his legal reasoning. In fact, and very significantly, he wrote a separate opinion in which he spelled out some of the measures a majority of the justices would approve as part of a school district diversity policy:

strategic site selection of new schools; drawing attendance zones with consideration of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance and other statistics by race.

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