Recent developments in the quest for racial diversity in K-12 schools

Last June, in Students for Fair Admissions, Inc. v. Harvard College (SFFA), the U.S. Supreme Court held that the admissions systems at the University of North Carolina (UNC) and Harvard University were racially discriminatory, effectively ending affirmative action (i.e., the ability of colleges and universities to consider the race of applicants as one of many factors in a holistic admissions review process).

Although the ruling had no direct impact outside postsecondary schools, it isn’t hard to envision some aspects of the case bleeding into the K-12 world, particularly with respect to schools with selective admission policies. This is true even though, in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court already sharply limited the ability of K-12 districts to consider race in admitting students or assigning them to specific schools, leaving districts with fewer strategies at their disposal to increase racial diversity in schools. Under the Parents Involved ruling, K-12 admissions or school assignment policies that aren’t “race-neutral” are, absent a compelling justification, likely in violation of the 14th Amendment.

Targeting “race-neutral” admissions policies

More recently, though, even K-12 admission policies that are race-neutral (i.e., that do not consider students’ race) have come under scrutiny, with plaintiffs suggesting that they are, in fact, discriminatory. For example, in Coalition for TJ v. Fairfax County School Board (4th Cir., 2023), plaintiffs made this very claim about the admissions policy at the Thomas Jefferson High School for Science and Technology, a selective public school in Virginia. They argued that the school’s race-neutral admissions criteria — which included applicants’ GPA; a “portrait sheet” describing their various skills; a problem-solving essay; and their status as a student with a disability or English learner, a member of a low-income household, or a student attending an underrepresented public middle school — were a “proxy” to “racially balance” the student population and reduce the percentage of Asian American students.

However, just a month before the SFFA ruling, the Fourth Circuit Court of Appeals held that the policy was not racially discriminatory. “The [school’s admissions] policy visits no racially disparate impact on Asian American students,” the court stated. “Indeed, those students have had greater success in securing admission to [the school] under the policy than students from any other racial or ethnic group.” Plaintiffs appealed the decision to the Supreme Court, which has declined to accept the case for review.

Plaintiffs also sought to invalidate a race-neutral admissions policy governing three selective public high schools in Boston Parent Coalition for Academic Excellence v. City of Boston (1st Cir., 2023). They argued that the Boston schools’ admissions plan — which considered and ranked students by their GPA, residential address, and median family income in their ZIP code of residence — had a disproportionate and adverse racial impact on white and Asian American students.

In December, similar to the Fourth Circuit ruling, the First Circuit Court of Appeals upheld the Boston admissions policy. The court pointed out that the admissions plan reduced both overrepresentation of white and Asian American students and underrepresentation of Black and Latinx students, which made it odd for the plaintiffs to argue that the case was somehow racially discriminatory. “[The plaintiffs] have it backwards,” the court observed, because “the School Committee chose an alternative that created less disparate impact, not more.” As of January, plaintiffs have yet to announce whether they will appeal the decision to the Supreme Court.

More restrictions to come?

Unlike the university policies that the Supreme Court struck down in SFFA, neither of these K-12 cases involved any consideration of applicants’ race in the admissions process. But this didn’t deter plaintiffs from claiming race discrimination. The big question is whether the Supreme Court will sympathize with their arguments and expand the scope of its current prohibition — limiting consideration of individual students’ race — by further limiting K-12 race-neutral admissions criteria adopted for the purpose of increasing racial diversity.

Anticipating this possibility, perhaps, the Boston Parent Coalition court pointed out that several Supreme Court justices in SFFA had separately indicated that race-conscious use of race-neutral admissions criteria was perfectly kosher. For example, it noted, Justices Neil Gorsuch and Clarence Thomas signaled in concurring opinions that universities “could obtain significant racial diversity without resorting to race-based admissions practices” by increasing preferences for socioeconomically disadvantaged applicants or eliminating preferences for children of donors, alumni, and faculty. But the SFFA majority also cautioned, in a manner made more ominous by its vagueness, that “universities may not simply establish through . . . other means the [affirmative action] regime we hold unlawful today.”

Despite this cautionary note, existing constitutional legal doctrine makes restricting race-neutral admissions criteria somewhat unlikely, for two reasons. First, the Arlington Heights v. Metropolitan Housing Development Corporation case (U.S. Sup. Ct., 1977) sets a high bar for invoking strict scrutiny (the highest level of judicial review) of a claim that a race-neutral policy (say, an admissions policy giving an advantage to low-income students) amounts to unconstitutional racial discrimination. A plaintiff would have to show evidence of both a disparate impact on a particular racial group and invidious discriminatory intent by the government. The act of adopting race-neutral criteria that might support a goal of increasing racial diversity, without evidence of a desire to harm members of a particular racial group, doesn’t amount to invidious discriminatory intent under Arlington Heights.

Second, in the Parents Involved case, Justice Anthony Kennedy (albeit in a concurring opinion), clarified that public schools are permitted “to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body.” Schools may, for example, freely focus their outreach and recruitment efforts in communities of color, choose school sites or redraw attendance zones to increase racial diversity, or provide curricular or programmatic opportunities designed to attract or support students of different racial and ethnic backgrounds.

These precedents provide some comfort that, looking ahead, most race-conscious efforts to increase student diversity will not somehow amount to race discrimination in the eyes of the courts.

Necessary allowances

In sum, although the consideration of individual students’ race to “racially balance” the K-12 student population is, in most cases, all but verboten, the general use of race-conscious strategies to increase student diversity remains permissible. And necessary: Hundreds of thousands of students experience extreme racial isolation in public schools today, nearly 70 years after the Court outlawed legally mandated segregation in Brown v. Board of Education (Frankenberg et al., 2019). Some schools are even more segregated now than when they were first ordered by courts to desegregate, decades ago (Cardona & Rodriguez, 2023).

Fortunately, state courts from New Jersey (Walsh, 2023) to Minnesota (McVan, 2023) are showing signs of renewed interest in tackling school segregation. Chances are that the Supreme Court will recognize that further limiting race-conscious actions by schools would impede these state-level cases and effectively cement into place whatever racial composition exists in local schools. Surely, even for this Court, this would be a bridge too far.

References

Cardona, M.A. & Rodriguez, R.J. (2023). The state of school diversity in the United States. U.S. Department of Education.

Frankenberg, E., Ee, J., Ayscue, J.B., & Orfeld, G. (2019, May). Harming our common future: America’s segregated schools 65 years after Brown. The Civil Rights Project.

McVan, M. (2023, Dec. 13). Ruling in Cruz-Guzman case good news for public school desegregation efforts. Minnesota Reformer.

Walsh, M. (2023, Oct. 17). State judge says ‘racially isolated districts persist’ in New Jersey. Education Week.