BoardBuzz

« An apple a day just doesn't cut it anymore | Main | Is your community making beautiful music? »

December 5, 2006

More about yesterday's Supremes action

As promised, some more reflections today on yesterday's oral arguments in the Seattle and Louisville diversity cases.

Coverage
NPR's Nina Totenberg has an excellent story about the cases on this page, including the perspective of Jefferson County school board member Carole Haddad. Haddad originally ran for the board in opposition to integration efforts but, like Louisville itself, has come full circle. From that same page you also can listen to yesterday's Talk of the Nation broadcast featuring Michael Small of Akin Gump, one of the lead authors on the brief NSBA and other K-12 groups submitted to the Court.

Diehards also can listen to the recordings of the arguments themselves from C-SPAN, here. Good editorials supporting the school boards include this one in USA Today and this one in the Washington Post.

Highlights
Ironically, both sides lay claim to the legacy of Brown v. Board of Education. A skeptical Justice Ruth Bader Ginsburg observed that saying a school board's striving to achieve diverse schools for local children "is the same as segregation, it seems to me is pretty far from the kind of headlines that attended the Brown decision." That's putting it mildly. NAACP Legal Defense Fund Ted Shaw calls it "hijacking" the language of Brown to argue the opposite. But school boards know this kind of chutzpah is nothing new in education policy debates. Just look at how the prophets of privatization like to dress up their arguments nowadays.

In Court as out, the non-educators denouncing the school board policies were at their weakest when they blithely argued that the boards could get the job done if they would just try some race-neutral alternatives—magnet schools, perhaps, or incentive pay, or, hey, maybe lower class sizes or... something. Justice Stephen Breyer wasn't buying:

[Y]ou have little doubt. Are you an educational expert? I mean... it seems to me from what I read, that there is a terrible problem in the country. The problem is that there are lots and lots of school districts that are becoming more and more segregated in fact, and that school boards all over are struggling with this problem. And if they knew an easy way, they'd do it.


So I don't know whether this is exactly the only way to do it or not. I do know courts are not very good at figuring that out. And I guess that's why the Court previously has said it is primarily up to the school district.

Breyer's father was a school board attorney for San Francisco, by the way.

This point about alternatives is key. The school boards argue they've considered lots of approaches and have carefully crafted sophisticated public school choice policies, policies that they continue to fine-tune to fit changing local circumstances. Jefferson County's attorney Francis Mellen Jr., who stood out among the advocates as the one who really knows schools, explained to the Court how his client carefully considered alternatives, including by consulting with other school boards that use strictly race-neutral approaches. He noted that the resulting policies are narrowly tailored, successful, broadly supported, and, in effect, reconsidered every time his community holds its school board election.

These points also have been made eloquently by Jefferson County's student assignment director Pat Todd, quoted here in Time magazine. BoardBuzz thinks Todd embodies the currently unfashionable reality that K-12 policy debates are better informed when they include voices from local school districts.

Outlook
On this point about alternatives, Justice Anthony Kennedy voiced the view that the Court has made clear that race can be considered only as a "last resort." Kennedy is seen as the swing vote in the cases, so everyone was hanging on his questions, and the other justices eagerly picked up on his lines of inquiry. Like many observers, Linda Greenhouse of the New York Times doubts Kennedy will rule for the school boards. In this recounting of the arguments, Lyle Denniston of SCOTUSblog agrees.

NSBA attorney Tom Hutton tells the Seattle Times, here, that the very fact that the Court decided to hear the cases in the first place probably portends some dose of bad news for local school board discretion. The question is how much. Kennedy had some hard questions for both sides, as the Washington Post reports here, and it's possible he was probing with an eye toward a possible line-redrawing, as opposed to a wholesale ban.

If so, the question will be: Will whatever is left have any real chance of working?


Posted December 5, 2006 5:28 PM | School Law

Trackback Pings

TrackBack URL for this entry