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Sutherland Asbill & Brennan Attorneys Answer Questions as United States Supreme Court Debates Diversity in Public Schools

December 4, 2006

ATLANTA (December 4, 2006) – The U.S. Supreme Court will hear arguments today in two cases involving the use of race as a factor in student assignment in K-12 public schools.  Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education both test the limits of the Supreme Court's 2003 holding in Grutter v. Bollinger, a case involving a challenge to the Michigan Law School's affirmative action admission policy.  In Grutter, the Court held that achieving classroom diversity can be a "compelling governmental interest" sufficient to justify the consideration of race in higher education admission policies.  

The two cases, which have been consolidated for oral argument, involve challenges to K-12 public school student assignment policies that use race as a factor when assigning students to particular schools.  In addition to attempting to distinguish K-12 education from higher education, the plaintiffs have called on the Court to overrule its recent holding and declare that classroom diversity can never serve as a compelling governmental interest sufficient to justify the use of race. 

John Munich, a partner in the Education Litigation Practice Group at national law firm Sutherland Asbill & Brennan LLP, filed an amicus brief on behalf of two social scientists and a former school superintendent to assist the Court in its resolution of the cases.  John successfully argued Missouri v. Jenkins in 1995, one of the leading school desegregation cases decided by the Supreme Court in recent years, and the last case decided by the Supreme Court involving questions of race in America's K-12 public schools.  Rocco Testani, head of the firm's Education, Government, and Civil Rights practice, has also been following the case closely.  He represented the State of Michigan in a four-week school desegregation case in which the federal court granted the state's motion for unitary status, ending more than 20 years of court supervision over the state and the Benton Harbor, Michigan public schools.  Both John and Rocco have been named in "Best Lawyers in America" in the area of Education Law.

In advance of the Supreme Court's argument and ruling, John and Rocco answered the most pressing questions involving these two education cases.
 
1. How are these cases different from previous race-related K-12 education cases?

Most of the Court's previous race-related public education cases involve court-ordered desegregation in response to historical de jure segregation.  These cases are different insofar as neither school district has justified its assignment policy as a method to remedy the effects of previous de jure segregation.  Instead, the school districts have defended their plans by relying on Grutter v. Bollinger, the recent decision approving certain race-conscious admissions policies as a means to achieve classroom diversity in institutions of higher education.

2. Didn't the Court already approve of the use of race in public school admissions?

In 2003, the Court upheld the University of Michigan Law School's admission plan, which considered the race of an applicant.  The Court reasoned that the law school had a compelling interest in achieving classroom diversity and that the plan's use of race was narrowly tailored to achieve diversity.  In the companion case, Gratz v. Bollinger, however, the Court struck down the University of Michigan's undergraduate admission plan.  Although the university attempted to justify its undergraduate admission plan as a means of achieving classroom diversity, the Court concluded that the plan's use of race was not narrowly tailored.  The Court believed that the undergraduate plan did not provide sufficient individualized consideration to students but instead operated as a quota.

3. How do these cases differ from the Michigan cases?

In the Michigan cases, the Court considered the use of race in higher-education admissions programs.  There are some important differences between admissions policies in what the Court called "the unique setting of higher education" and K-12 public school assignment plans.  One major difference is that students have a broad range of higher education institutions from which to choose.  K-12 student assignment is typically compulsory, and the only alternative for most students is to pay for private school.  There is also a larger body of scientific research regarding the effects of classroom diversity in the K-12 context.

The mechanics of the school assignment plans at issue in the current cases differ substantially from the admission policy upheld in Grutter.  The school assignment plans currently before the Court bear a closer resemblance to the admission policy stuck down by the Court in Gratz

4. What effect will these rulings have on other school districts if the challengers win and the plans are declared unconstitutional?

The effect will depend largely on the rationale of the Court's opinion.  If the Court overrules Grutter, the implications will be enormous not only for K-12 schools, but also for public universities.  Public educational institutions would no longer be able to justify race-conscious student admissions programs by referring to the benefits of classroom diversity.  Those institutions would need to consult carefully with experts when crafting admissions policies that could both comply with the Court's decision and still result in diverse classrooms.

If, instead, the Court were to strike down the plans because of their mechanics, the impact would be less widely felt.  Districts with plans similar to the ones at issue obviously would need to revamp their policies to comply with the Court's decision.  Again, the districts would benefit from consultation with an expert when crafting new student assignment plans.

5. Which types of school districts will be most affected by the rulings?

Large urban school districts are the most likely to have school assignment plans similar to the ones being challenged, because those districts typically have large student populations and many schools to fill.  The higher population densities in urban areas make it practical for districts to consider factors other than residence when assigning students to schools.  Smaller rural districts usually have more homogenous student populations, fewer schools, and lower population densities, making assignment policies like the ones at issue impractical.

6. If the challengers succeed in getting the Court to overrule Grutter, will there be any way for public educational institutions to achieve classroom diversity?

There are several ways that public educational institutions can achieve classroom diversity without using race as a factor in their admissions or assignment policies.  It is important that the policies are not pretextual and are designed in accordance with legal requirements.  Educational institutions seeking to achieve classroom diversity without using race as a factor in their admissions or assignment plan should consult with experts when designing such a plan, not only to avoid potential liability, but also to minimize chances of a resource-draining lawsuit.

7. Will these cases finally put to rest challenges to public school admission policies?

It is very unlikely that these cases will be the last challenges to public school assignment policies.  Both proponents and opponents of race-conscious admissions plans are unlikely to relent, regardless of the Court's ruling.  For public schools intent on having diverse classrooms, it will be important to plan carefully to avoid challenges and to be on solid legal footing should a challenge arise.

John and Rocco are both available for interviews.  Please contact John Hellerman (202.274.4762 or jhellerman@hellermanbaretz.com) or Elli Kerlow (202.383.0182 or eleanor.kerlow@sablaw.com) to make arrangements.

Sutherland Asbill & Brennan LLP is an AmLaw 100 law firm known for solving challenging business problems and resolving unique legal issues for many of the nation's largest companies.  Founded in 1924, the firm has grown to more than 450 lawyers with offices in Atlanta, Austin, Houston, New York, Tallahassee and Washington.  The firm's Education, Government, and Civil Rights group has a national reputation for successfully representing states, local governments and school districts, at trial and appellate court levels.  The group also routinely consults with states, local governments and school districts on complex legal issues.  For further information about the firm, please visit sutherland.com.

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