Constitutional Law and Race-Conscious Policies
in K-12 Education. ERIC Digest.
by Ancheta, Angelo
Nearly 50 years after the U.S. Supreme Court's decision in Brown v.
Board of Education, the racial integration of our nation's public schools
remains elusive. With the growth of immigrant populations and the movement
of families from cities to suburbs, race relations have become very complex;
the minority student population of many school districts is now the majority,
and it is composed of three or more racial and ethnic groups.
Despite the mandates of Brown to desegregate schools with "all deliberate
speed," many school districts that were once under court order to desegregate
have been released from their obligations and are experiencing problems
of resegregation (Orfield & Yun, 1999). Voluntary efforts to address
racial isolation--efforts that are not required by a court or a settlement
agreement--have been challenged as unconstitutional. Policymakers must
grapple with the growing complexities of race and an uncertain legal landscape
that may, ultimately, preclude the use of race-conscious measures in K-12
This digest examines the constitutional framework that guides the use
of race-conscious policymaking in K-12 education. Despite the requirements
of Brown, recent court decisions suggest that desegregation remedies are
becoming more limited and that voluntary policies will be subject to greater
scrutiny by the courts.
THE CONSTITUTIONAL FRAMEWORK
The legal framework governing racial policymaking in K-12 education
reflects the intersection of two distinct bodies of law. One body of law
applies to court-ordered desegregation remedies flowing from the Brown
decision. The other applies to voluntary programs and policies that have
been challenged as unconstitutional uses of race.
The Brown v. Board of Education decision made clear that segregation
in education is unconstitutional. In Green v. County School Board, the
Supreme Court held that segregated systems must be dismantled "root and
branch," so that desegregation is achieved among several factors affecting
educational quality, including student body composition, facilities, staff,
faculty, extracurricular activities, and transportation. The "Green factors"
have been used to craft desegregation remedies and to measure whether a
district has achieved "unitary status," a signal that court supervision
is no longer required.
Throughout the 1960s and early 1970s, the Federal courts employed a
variety of race-conscious remedies to desegregate the public schools, including
busing, transfer policies, and magnet schools, as well as numerical goals
for student enrollment. In Swann v. Charlotte-Mecklenburg Board of Education,
for example, the U.S. Supreme Court struck down race-neutral student assignment
plans that produced school segregation because of segregated housing patterns,
and the Court approved busing as a remedy.
Beginning in the 1970s, however, the courts began paring back the scope
of desegregation remedies. In Milliken v. Bradley, the Supreme Court ruled
that the courts cannot, in most instances, impose an interdistrict remedy
between a city and its suburbs in order to integrate the schools. (The
Court did rule later in Milliken, however, that a court could order a state
to pay for educational programs to repair the harm caused by segregation.)
In Board of Education of Oklahoma v. Dowell, the Court ruled that a
district satisfying the Green factors could be declared unitary and freed
from any affirmative obligations to end segregation. In addition, the Court
held that government action recreating segregated schools would be presumed
to be nondiscriminatory. In Freeman v. Pitts, the Court went further and
ruled that the Green factors do not have to be met simultaneously for a
system to be declared unitary; instead, a court could withdraw supervision
over an aspect of desegregation, one step at a time. And in Missouri v.
Jenkins, the Court found that "white flight" out of urban districts did
not justify an interdistrict remedy such as magnet schools; moreover, districts
did not have to demonstrate that the harms caused by segregation, such
as lower minority student test scores, had been corrected in order to attain
Because of the relaxed standards, districts throughout the country have
been declared unitary and released from court supervision. An unfortunate
consequence is that many systems are experiencing resegregation. For example,
in the South, which achieved high levels of integration in the 1970s and
1980s because of court involvement, the percentage of black students in
majority-white schools in the late 1990s dropped to levels last seen in
the early 1970s; trends suggest that the percentage of black students in
majority-white schools will continue to decrease (Orfield & Yun, 1999).
Voluntary Policies and "Strict Scrutiny"
In addition to court-ordered remedies to address segregated school systems,
voluntary race-conscious policies are used to advance goals such as preventing
racial isolation or promoting diverse student bodies. These policies, like
all race-conscious policies, must comply with the equal protection clause
of the Constitution and satisfy a high standard of review known as "strict
The courts employ a two-part test under strict scrutiny. First, courts
evaluate whether a race-conscious policy advances a "compelling governmental
interest." A compelling interest must be especially important; one example
is remedying the present effects of a district's past discrimination. Second,
courts evaluate the fit between the policy and the interest being advanced.
A race-conscious policy must be necessary to achieve the compelling interest,
and the courts typically require that a policy be "narrowly tailored" to
serve that interest. For example, if a race-neutral policy could advance
an interest as well as a race-conscious policy, then the race-conscious
policy is not narrowly tailored. The two requirements are discussed below.
Compelling Interests. The courts have widely recognized that remedying
the present effects of an institution's past discrimination is a compelling
interest. There must, however, be a "strong basis in evidence" to prove
the effects of past discrimination. It is not enough that a district assert
that there has been discrimination. The district must provide evidence
of the discrimination, and document its harmful effects through concrete
evidence, which can include testimony, written documents, and statistical
evidence of racial disparities. The Supreme Court has also ruled that remedying
societal discrimination, compared to an institution's own discrimination,
is not sufficiently compelling, because it is too broad and general (City
of Richmond v. J.A. Croson Co.).
Whether a non-remedial interest can be a compelling interest is a source
of conflict in the Federal courts. Several non-remedial interests have
been challenged, with mixed results. One court of appeals has ruled that
"reducing racial isolation" is a compelling interest (Brewer v. West Irondequoit
Central School District). However, a trial court in Ohio ruled that preventing
racial isolation was not compelling because the district relied on a statistical
analysis of how demographic trends might play out in the future (Equal
Open Enrollment Association v. Board of Education of Akron City School
The promotion of "educational diversity" in higher education, an interest
that was upheld by the Supreme Court in Regents of the University of California
v. Bakke, has been advanced as an interest in K-12 settings. For example,
race-conscious admissions policies for selective public schools have been
justified by a Bakke-type interest in promoting diversity. However, the
courts have not ruled squarely on the issue, largely because there have
been recent challenges to the Bakke decision itself. A number of courts
have assumed that an interest in promoting diversity is compelling, and
then have gone on to strike down policies because they are not narrowly
Narrow Tailoring. Although the courts do not always apply the same test
of narrow tailoring, they generally weigh several factors, such as the
necessity of the policy, the availability of alternative race-neutral policies,
the duration of a policy, the relationship between numerical goals and
the relevant student population, the flexibility of the policy, and the
burden imposed by the policy on third parties (United States v. Paradise).
The narrow tailoring inquiry has become increasingly important because
several courts have assumed that interests such as a Bakke-type interest
in diversity are compelling, and then struck down policies as not being
narrowly tailored. These courts characterize voluntary policies as forms
of "racial balancing" that are inadequate alternatives to race-neutral
policies and impose too great a burden on non-minority students (Eisenberg
v. Montgomery County Public Schools; Tuttle v. Arlington County School
Board; Wessman v. Gittens). One court, however, has upheld a voluntary
interdistrict transfer policy on narrow tailoring grounds, finding that
"there is no more effective means of achieving [the goal of reducing racial
isolation] than to base decisions on race" (Brewer v. West Irondequoit
Central School District).
Except for remedial cases, the courts will not uphold quotas or set-asides
as narrowly tailored. However, a plan that does not use race in a rigid
or mechanical way and is a well-considered alternative to a race-neutral
policy is more likely to satisfy strict scrutiny. Much like the higher
education admissions policy upheld in Bakke, K-12 policies that employ
race along with other relevant factors (such as socioeconomic background
or geographic ties) may stand the best chance of being upheld by the courts.
RECONCILING THE LAW
The use of race in K-12 educational policy remains problematic. Policies
that might be legal in one setting (racial balancing to remedy past segregation)
can be unconstitutional in other settings (the same policies employed in
a voluntary context). The law in this area continues to evolve as new policies
are adopted and new cases are litigated. The Supreme Court has chosen not
to take up appeals from the recent K-12 cases challenging voluntary race-conscious
policies, but as cases percolate in the lower courts, the Court may ultimately
take an appeal and provide greater guidance to the courts and to policymakers.
The Court is also likely to revisit its decision in the Bakke case, and
should provide direction for K-12 policymakers. But until the Supreme Court
does provide definitive guidelines, the use of race in K-12 education will
Brewer v. West Irondequoit Central School Dist., 212 F.3d 738 (2d Cir.
Brown v. Board of Education, 347 U.S. 483 (1954).
Board of Educ. of Oklahoma v. Dowell, 498 U.S. 237 (1991).
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir.),
cert. denied, 529 U.S. 1019 (1999).
Equal Open Enrollment Ass'n v. Board of Educ. of Akron City School Dist.,
937 F. Supp. 700 (N.D. Ohio 1996).
Freeman v. Pitts, 503 U.S. 467 (1992).
Green v. County School Board, 391 U.S. 430 (1968).
Milliken v. Bradley, 418 U.S. 717 (1974).
Milliken v. Bradley II, 433 U.S. 267 (1977).
Missouri v. Jenkins, 515 U.S. 1139 (1995).
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).
Tuttle v. Arlington County School Bd., 195 F.3d 698 (4th Cir. 1999),
cert. dismissed, 529 U.S. 1050 (2000).
United States v. Paradise, 480 U.S. 149 (1987).
Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998).
Orfield, G., & Yun, J. (1999). Resegregation in American schools.
Boston: The Civil Rights Project, Harvard University. (ED 445 171). Available: