Three years after the U.S. Supreme Court struck down the race-based student assignment policies in Seattle and Jefferson County, Ky., some urban school leaders are looking to use socioeconomic factors as the criteria to determine student placements designed to promote diversity in their schools.
The strategy holds promisebut comes with a caveat. “I would suggest if it ever gets to the point that you use something as a proxy for race, it still opens you to some [legal] challenge,” said NSBA General Counsel Francisco Negrón.
Urban school leaders received an extensive overview of the legal issues surrounding school diversity policies at a workshop Thursday in Baltimore during the 2010 Annual Conference of NSBA’s Council of Urban Boards of Education (CUBE).
For local school policymakers, a key point of the high court’s rulings on the Seattle and Jefferson County attendance plans is that the decision did not totally bar the use of race in school district efforts to promote diversity in schools, Negrón said.
The court did, however, set a high bar for the consideration of race, he added. But a school board must show a compelling government interest for its actionsthat its policies to promote diversity offer real educational benefits to students and counter the educational harm of racially isolated schools.
In Seattle and Jefferson County, the high court ruled that the school systems had not proven their cases. For example, justices questioned that, if diversity in schools was such an important goal, why did the districts’ policies focus on the mix of whites versus minorities in schools instead of the more complex mix of all racial groups.
“For districts to proclaim their concerns about diversity, and forget about Asians or other types of individuals . . . that would not necessary bode well with the court,” said workshop panelist Jay Worona, general counsel for the New York State School Boards Association.
To pass legal muster, school boards must articulate why specific levels of diversity are needed, why race-neutral policies won’t do the job, and explain how the criteria used in student assignments serve a school district’s educational goals.
When setting up its student assignment plans, school boards would be wise to look first at the feasibility of a race-neutral plan for student assignments, panelists said. Socioeconomic factors, parent education levels, and academic achievement levels are just some of the criteria that could be used in such plans.
School boards also should weigh other strategies to promote school diversity, such as redrawing attendance boundaries or building new schools in locations that would draw from a diverse population in surrounding neighborhoods.
Another important step is to articulate and document the reasoning behind any policy, Negrón said.
“You, as school board members, as you talk about diversity programs, you need to be aware of what the research says [about diversity and academic gains] and be talking about that,” he said. “Because when you get hauled into court, the question is going to be, Aren’t you doing this [criteria] as a substitute for race?’ Another question will be, Why do you believe this [diversity] is good as an academic goal?’ ”
Near the end of the workshop, Negrón suggested that one of the ironies of the high court’s rulings is that, by making it harder for school boards to promote diversity, the court is making school boards more vulnerable to the same accusations leveled in Brown v. Board of Educationthat the existence of segregated schools is denying all children an equal education.
“It may very well be, at some point, a parent sues you,” he said.