experience provided us with
invaluable guidance during times
when we faced critical decisions."
June 29, 2007
Alyson M. Palmer | The Daily Report Staff Reporter
The U.S. Supreme Court’s ruling Thursday striking down integration plans in Kentucky and Washington state could spell the end to how some Georgia school districts administer magnet schools and other special programs, a local lawyer who represents school districts said Thursday.
“I think there are some magnet programs where there have been some set asides for racial minorities that may be in jeopardy,” said Sam S. Harben Jr. of Harben & Hartley in Gainesville.
Harben declined to say which school districts he had in mind, acknowledging some were clients. One school district he doesn’t represent is the DeKalb County School System, which is currently facing litigation over its magnet program.
Atlanta lawyer A. Lee Parks Jr. of Parks, Chesin & Walbert has brought that suit, representing white parents who say their children weren’t selected for a DeKalb magnet program because the school district had weighted the lottery in favor of black students who hadn’t even applied to the program. He said one message from Thursday’s decision is: “You can’t go out and intentionally glut the lottery with black students.”
But Parks and other lawyers noted that the decision did allow for some voluntary efforts at increasing diversity in public elementary and secondary schools. The guidelines, they said, may be found in Justice Anthony M. Kennedy’s concurring opinion.
The court divided 5 to 4 in striking down the Seattle and Jefferson County, Ky., districts’ voluntary integration plans. White parents had challenged the use of race in the plans, arguing that the plans unfairly disadvantaged white students, while the school districts said they had important interests in ensuring diverse schools.
Chief Justice John G. Roberts Jr. wrote the court’s majority opinion, but Kennedy’s opinion is important because he did not join key portions of Roberts’ opinion.
Diverging with the plurality, Kennedy wrote that “diversity”–depending on how it is defined–is a goal school districts may pursue. It’s how they do it that matters, he said.
In particular, wrote Kennedy, schools may pursue diversity by selecting new school sites strategically, drawing attendance zones “with general recognition of the demographics of neighborhoods,” in allocating resources for special programs and in recruiting teachers and students in a targeted way.
“I think a lot of school systems will probably follow Justice Kennedy’s roadmap,” said Parks. “Because it’s a problem–school systems are resegregating.” The “real problem” leading to that shift, he said, is “unrelenting residential segregation.”
Parks said the court was right on the law. “The law’s easy,” he said.
“It’s a hard law to follow for a lot of people,” said Parks, “because the perception is you’re not letting these school districts [maintain] the racial balance they achieved.” But those folks, he said, are “just missing the point.”
Once a “dual school system” in place under legally-mandated segregation is remedied, and a school district is released from federal court supervision, said Parks, the rationale allowing for use of race in school assignments goes away.
Some Georgia school districts still maintain so-called “majority-to-minority,” or “M-to-M,” busing programs under court supervision, said Parks. But, he said, under the court’s opinion that’s still legal if the school is reporting its progress to the court annually.
Rocco E. Testani, a lawyer at Sutherland Asbill & Brennan who has represented school districts, including Fulton County, in matters of student assignment, agreed that the court’s decision was correct. And he concurred that Kennedy’s opinion was the critical one for schools to examine.
“He is not equating diversity with racial composition,” said Testani, whose firm submitted an amicus brief on behalf of social scientists supporting the parents who challenged the assignment plans. Instead, said Testani, Kennedy says schools may be concerned about diversity with respect to people’s overall life experiences, a position that could be significant not just in education but other areas, such as employment.
The bottom line, said Testani, is that “when you make decisions based solely on race, you’re in trouble under this decision. If you treat students based solely on their race, you’ve got potentially a problem under this decision.”
Another local lawyer who’s represented school districts, Harben, said he regrets the court’s decision. “There is a compelling interest in having a diverse student population, and it’s essential to avoid resegregating our schools,” said Harben.
Ironically sounding in some ways like those who had defended the segregation mandated by law in the past, Harben said that the question was who would make decisions about school assignments–school districts or courts. School districts are better at achieving diverse student bodies, he said.
And he seconded Justice John Paul Stevens’ dissent saying that Roberts’ invocation of the landmark Brown v. Board of Education, 347 U.S. 483 (1954), to justify striking the voluntary integration plans was “cruel irony.”
Parks’ case against DeKalb schools is proceeding before U.S. District Judge Richard W. Story, who’s set a July 11 hearing on the matter. While the school district’s lead lawyer on the case, Josie A. Alexander of Atlanta, could not be reached for comment, DeKalb has maintained in a court filing that it did not deny the children of Parks’ clients admission to Kittredge Magnet School on the basis of race.
According to filings by Parks, DeKalb has ceased using what he says was an unconstitutional admissions policy, and he acknowledges that one of his clients’ two daughters who applied to Kittredge was admitted off a waiting list. But he’s asking Story to force DeKalb to admit the other daughter for the coming school year.
That case is Simon v. DeKalb County School District, No. 1:06-CV-2835 (N.D. Ga.).