XTRA! XTRA! Supremes To Consider Racial School Assignments…

The Supreme Court surprised observers by agreeing to hear two cases, one from Louisville and one from Seattle, that allow school districts to consider race in assigning students to schools in order to maintain “racial balance.” These cases are virtually indistinguishable from a Massachusetts case that the Court refused to consider last December, when Sandra Day O’Connor was still on the Court.

What has changed is the Supreme Court itself, with the retirement in January of Justice O’Connor and her replacement by Justice Samuel A. Alito Jr. One lawyer involved in the challenges to the Seattle and Louisville plans, Sharon L. Browne of the Pacific Legal Foundation, a conservative public-interest law firm, expressed the view that this change made the difference.

“I think the writing’s on the wall, or at least I hope it is,” Ms. Browne said in an interview Monday.

Me, too.

Both Louisville and Seattle allow students “freedom of choice,” with the qualifier that the districts take race into account in deciding which choices to accept. For some individual students this often resembles Henry Ford’s famous choice of any color Model T … so long as it was black.

I’m traveling for a few days and don’t have time to discuss this matter right now. I may return to it later.

UPDATE [7 June]

Two years ago Curt Levey, general counsel of the Committee for Justice, predicted that Grutter, despite its unfortunate blessing of race preferences to produce “diversity,” would prove to be merely “a temporary and limited reprieve for race-based admissions policies.”

Writing two days ago on the Committee for Justice blog, Levey is encouraged by the Supremes’ decision to take up the question of racial school assignments. Although there is little chance that the Court will reverse Grutter, Levey notes that the Court’s decision to take on the Louisville and Seattle cases

likely signals that, with Alito replacing O’Connor, there are now five votes to 1) make it clear that the deferential treatment of racial preferences in Grutter was a one-time gift to affirmative action fans and 2) reign in the lower courts – such as the Ninth Circuit in Parents Involved and the Sixth Circuit in Meredith – that have interpreted Grutter as a virtual blank check for the use of race in student selection.

Let’s hope he’s right.

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