Supreme Court Limits Use of Race in School Assignments

Washington (CBS/AP) - The Supreme Court on Thursday rejected school diversity plans that take account of students' race in two major public school districts but left the door open for using race in limited circumstances.

The decision in cases affecting schools in Louisville, Ky., and Seattle could imperil similar plans in hundreds of districts nationwide, and it further restricts how public school systems may attain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court's judgment. The court's four liberal justices dissented.

The districts "failed to show that they considered methods other than explicit racial classifications to achieve their stated goals," Roberts said.

Yet Justice Anthony Kennedy would not go as far as the other four conservative justices, saying in a concurring opinion that race may be a component of school plans designed to achieve diversity.

To the extent that Roberts' opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, "I disagree with that reasoning."

He agreed with Roberts that the plans in Louisville and Seattle violated constitutional guarantees of equal protection.

"These plans in these districts are finished, but Justice Kennedy may have saved slightly different plans in other school districts around the country because in his concurring opinion he says you can't always and forever rule out the use of race as a factor," CBS News legal analyst Andrew Cohen says.

"This is not the crushing blow to affirmative action in public schools that it initially appears to be," Cohen says.

Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts' opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

"To invalidate the plans under review is to threaten the promise of Brown," Breyer said.

The two school systems in Thursday's decisions employ slightly different methods of taking students' race into account when determining which school they will attend.

Federal appeals courts had upheld both plans after some parents sued. The Bush administration the parents' side, arguing that racial diversity is a noble goal but can be sought only through race-neutral means.

Louisville's schools spent 25 years under a court order to eliminate the effects of state-sponsored segregation. After a federal judge freed the Jefferson County, Ky., school board, which encompasses Louisville, from his supervision, the board decided to keep much of the court-ordered plan in place to prevent schools from re-segregating.

The lawyer for the Louisville system called the plan a success story that enjoys broad community support, including among parents of white and black students.

Attorney Teddy Gordon, who argued that the Louisville system's plan was discriminatory, said, "Clearly, we need better race-neutral alternatives. Instead of spending zillions of dollars around the country to place a black child next to a white child, let's reduce class size. All the schools are equal. We will no longer accept that an African-American majority within a school is unacceptable."

The Seattle school district said it used race as one among many factors, relied on it only in some instances and then only at the end of a lengthy process in allocating students among the city's high schools. Seattle suspended its program after parents sued.

The opinion was the first on the divisive issue since 2003, when a 5-4 ruling upheld the limited consideration of race in college admissions to attain a diverse student body. Since then, Justice Sandra Day O'Connor, who approved of the limited use of race, retired. Her replacement, Justice Samuel Alito was in the majority that struck down the school system plans in Kentucky and Washington.

Decisions so far in cases on abortion, discrimination and the rights of defendants have put the court on a more conservative footing with the addition of President Bush's two appointees, Roberts and Justice Samuel Alito.

The court last tackled the topic of race and education in 2003, upholding the consideration of race in admissions to the University of Michigan law school.

Since then, however, the author of that opinion, Justice Sandra Day O'Connor, has retired. Alito took her place.

When the court heard challenges to school assignment plans in Louisville, Ky., and Seattle in December, a majority of the justices appeared inclined to strike down one or both plans.

Roberts was among the justices critical of taking race into account. He commented that the legacy of the court's landmark Brown v. Board of Education ruling in 1954 outlawing state-sponsored segregated schools should be race-blind programs.

"The purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than based on the color of their skin," Roberts said in December.

Justice Ruth Bader Ginsburg, one of four liberal justices, put the matter differently when she addressed a conference of judges and lawyers recently in Bolton Landing, N.Y. She suggested that the purpose of the plans is to keep schools from looking as they did before the Brown ruling and subsequent decisions requiring desegregation.

In remarks aired by the C-SPAN cable network, Ginsburg said the justices "will determine whether the Equal Protection Clause prohibits race-conscious efforts by school districts to prevent resegregation."

Also Thursday, the court blocked the execution of a Texas killer whose lawyers argued he should not be put to death because he is mentally ill. Scott Louis Panetti shot his in-laws to death 15 years ago in front of his wife and young daughter.

Panetti knows what he did, but believes that he is on death row because he preaches the word of God, his lawyers say. The court voted 5-4 to stop his execution.

The court also abandoned a 96-year-old ban on manufacturers and retailers setting price floors for products. In a 5-4 decision, the court said that agreements on minimum prices are legal if they promote competition.

The ruling means that accusations of minimum pricing pacts will be evaluated case by case.

Thursday's session will likely be the justices' last until October.

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