Justices, in shift, reject 2 race-based school plans

WASHINGTON -- The Supreme Court yesterday struck down assignment plans that place students by race to ensure that each public school has diverse classes, marking a major shift in discrimination law.

The decision could make hundreds of school-assignment plans across the country, including roughly 20 in Massachusetts, subject to legal challenges. The Supreme Court's decision was the latest in a string of 5-to-4 victories for conservatives following the arrival of President Bush's two nominees to the bench.

The court, in the final decision of its term, ruled that desegregation plans in Seattle and Louisville discriminated against white students who had been prevented from attending the school of their choice, even though slots were available for minority students.

Some Massachusetts school systems have similar plans, including Lynn, whose policy of rejecting transfer requests if moving the student would upset the racial balance at a school was unsuccessfully challenged in federal court in 2005. The lawyer who represented the parents who challenged Lynn's policy said he is considering whether to ask a judge to halt the policy in light of the new ruling.

As in Lynn, the school systems in Seattle and Louisville had argued that their plans were necessary to ensure that student bodies were integrated. But Chief Justice John G. Roberts Jr. wrote that the goal of racial diversity alone is not enough to justify classifying stu dents by their race.

"To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end," Roberts wrote.

Roberts argued that striking down the integration plans was consistent with Brown v. Board of Education, the landmark 1954 case that outlawed segregation in schools. Both decisions, he said, were founded on the principle that students must not be told "where they could and could not go to school based on the color of their skin."

But Justice John Paul Stevens argued in dissent that there was a "cruel irony" in invoking Brown to strike down efforts to integrate public schools. Stevens accused the majority of rewriting "the history of one of the court's most important decisions" and violating subsequent court decisions, citing a 1968 decision involving a Massachusetts law that required public school integration.

In the Massachusetts case, the Boston School Committee challenged integration laws on the same basis as the plaintiffs in Louisville and Seattle, Stevens wrote. But in 1968, the Supreme Court let the law stand. Stevens suggested that political changes on the court -- not the law -- were responsible for the different outcomes.

"The court has changed significantly since it decided [the Boston case] in 1968," Stevens wrote. "It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today's decision."

Lower courts had voted to uphold the Louisville and Seattle assignment plans, which were similar but differed in some details. The Louisville policy classified students as "black" or "other" in making elementary school assignments and ruling on transfer requests. Seattle classified students as "white" or "nonwhite," and used the classification as a tiebreaking factor when allocating slots in high schools.

The four justices in the court's liberal bloc -- Stevens, Stephen G. Breyer, Ruth Bader Ginsburg , and David H. Souter -- dissented in yesterday's ruling. The four members of the conservative bloc -- Roberts, Samuel A. Alito Jr. , Clarence Thomas , and Antonin Scalia -- were joined by Justice Anthony Kennedy in the majority. Kennedy has often been the swing vote between the two blocs.

In a separate opinion, Kennedy said he agreed with the conservatives that the Seattle and Louisville plans were flawed because, he said, the school systems could have achieved diversity by other means that did not involve systematically categorizing students by race.

But Kennedy rejected the conservatives' call for a flat rule against taking race into account for the purpose of achieving diversity. He agreed with the liberals that achieving racial balance is a legitimate goal and that school districts can sometimes be justified in taking race into account as they "seek to reach Brown's objective of equal educational opportunity."

The court did not rule out the use of race entirely. Roberts said more aggressive race-based measures could be constitutional if the goal was not just achieving diversity, but redressing the effects of past official segregation, as in many school districts in the South.

And Kennedy outlined other ways in which he believed districts could use race as a factor when seeking to achieve diversity. He cited such tactics as deciding where to build schools and how to set boundaries for school zones with the demographic makeup of neighborhoods in mind.

"These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race," Kennedy wrote. "Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly."

The ruling was the court's first major journey into racial discrimination law since 2003, when it voted 5 to 4 to uphold a law school admissions policy that used race as a factor to achieve diversity. Justice Sandra Day O'Connor provided the fifth vote in the 2003 case, but she retired last year and was replaced by Alito, tilting the court's balance rightward.

Earlier this term, the court voted 5 to 4 to uphold a federal law banning late-term abortions even though it did not have an exception for the health of the pregnant woman. It also voted 5 to 4 to allow corporations and labor unions to air advertisements that implicitly criticize candidates shortly before an election without obeying the McCain-Feingold campaign finance rules.

In both of those cases, this term's decisions reversed course from 5-to-4 rulings in similar cases during O'Connor's final years on the court. Yesterday, several liberal activist groups that fought Roberts' s and Alito's confirmations cited the past year's record as proof that their opposition back in 2005 and 2006 had been justified.

"While Chief Justice Roberts and Justice Alito gave lip service to respect for the established rulings of the court in their confirmation hearings, they have not hesitated to tear down or undermine long-held rulings," said Ralph Neas of People for the American Way. "This court has shown the same respect for precedent that a wrecking ball shows for a plate glass window."