March 2018 Legal Matters

In 2016, the U.S. Supreme Court upheld a race-conscious admissions program that was designed to increase student body diversity (Fisher v. University of Texas). Although this is a higher education case, the National Education Association, the National School Boards Association, and the NAACP Legal Defense and Education Fund all wrote that “Fisher” will have implications for K–12 schools that seek to diversify their school districts.

Several groups representing K–12 interests filed briefs in the Fisher case supporting the position that racial diversity is important at every level of education. This topic is especially timely as recent research demonstrates that socioeconomic segregation is on the rise and economically disadvantaged students are increasingly exposed to other students like themselves in school. The intersection of race and income is also intensifying. A 2016 U.S. Government Accountability Office (GAO) study on K–12 public schools found that the percentage of schools enrolling a high concentration of students who were both economically disadvantaged and either black or Hispanic had increased from 9 percent in 2000–01 to 16 percent in 2013–14.

Since the Brown v. Board of Education (1954) decision, patterns in racial and socioeconomic school segregation have changed for many reasons, including residential choices, court decisions, and other demographic conditions. Many of the court-ordered desegregation plans were limited to addressing within-district racial segregation, or segregation patterns between schools in a single district; this in part contributed to higher rates of segregation between districts, while “white flight” exacerbated the problem.

In light of the Fisher decision and various legal issues involved, how might school officials encourage more racial and socioeconomic diversity?

Consideration of Race, Socioeconomic Status

In 2007, the U.S. Supreme Court examined this issue in the K–12 context. The court addressed whether voluntary desegregation plans designed to further student body integration in Louisville, KY, and Seattle, were constitutional. Although the court ruled that the plans were unconstitutional because the school district’s plans relied too heavily on race, it nonetheless recognized that student body diversity is a compelling state interest.

Justice Anthony Kennedy’s concurrence in the Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 decision provides helpful information to school personnel interested in maintaining or creating diverse schools:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. 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.

In 2011, the U.S. Department of Education and the U.S. Department of Justice released additional guidance to assist school districts that were interested in creating or maintaining racially diverse schools. Although the guidance does not have the force of law, it does provide school districts with some legal parameters to increase diversity in ways that align with the “Parents Involved” decision.

Taken as a whole, the law is clear that school officials cannot create policies that explicitly consider only race in assigning students to schools or classrooms in order to increase diversity. It is also important to note that if a school district creates a policy that results in a racial classification, it will be subject to strict scrutiny review, whereas policies involving socio-economic status are only subject to rational basis review (a much easier legal standard to satisfy).

Litigation After Parents Involved Decision

Subsequent to the Parents Involved decision, several school districts attempted to develop plans that either directly or indirectly increased the racial and socioeconomic diversity of the student body. A school district in Pennsylvania created a redistricting plan that addressed several school district goals and concerns, including equalizing enrollment among the schools, busing, and other issues such as diversity. After the plan was announced, the district was sued; it was alleged that the redistricting plan was racially discriminatory.

The 3rd Circuit Court of Appeals (jurisdiction in DE, NJ, and PA) upheld the school district’s plan, finding that when the district drew attendance boundaries it did not create a racial classification. The court observed that “the consideration or awareness of race while developing or selecting a policy, however, is not in and of itself a racial classification. … Designing a policy ‘with racial factors in mind’ does not constitute a racial classification if the policy is facially neutral and is administered in a race-neutral fashion.” Upholding the district court’s opinion, the appellate court found no evidence of intentional segregation when the student assignment plan provided students a choice to attend a neighborhood school or a more distant diverse school. Unlike the school districts in the Parents Involved decision, district officials had used race-neutral factors in its redistricting plan that were rationally related to the legitimate purposes outlined by the school board through its specific goals. This federal court decision and others suggest that school districts can develop plans to increase student body diversity that do not violate the constitution.

Creating More Diverse Districts and Classrooms?

We recommend the following resources to school districts that are interested in increasing diversity in their programs:

  1. The GAO recommendations call for ED to analyze the Civil Rights Data Collection more frequently with an eye for disparities including “access to academic courses.” ED also provides detailed guidance on the importance of diversity, as well as information on the several civil rights laws in place to protect at-risk populations. These steps, we posit, can and should be done at the local and state level as well. Identifying enrollment trends and articulating a clear position on the value of diversity are important steps in promoting more equitable solutions over time.
  2. The 2011 ED and Department of Justice guidance encourages school districts to carefully consider the site of new schools and programs; bringing new programs to low-performing schools might help achieve more diversity. “Mixing up” feeder patterns can also contribute to improving student exposure. Open enrollment programs can change enrollment patterns, especially if they include a goal of increasing socioeconomic diversity.
  3. In separate reports, the National School Boards Association and The Century Foundation have summarized research that supports why student body diversity at the K–12 level is a compelling school interest. This research might assist school leaders in making a case for creating plans that consider diversity. (See https://tinyurl.com/fisheruta.)
  4. At the state level, several publications exist that offer school diversity strategies (e.g., see https://tinyurl.com/ohiodiversitystrat.)

Jodi Moon, PhD, is a post-doctoral fellow at the Houston Education Research Consortium (HERC) at Rice University in Houston. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University in Bloomington, IN. She is the author of numerous publications, including Principals Avoiding Lawsuits.