'Just News' Blog

A Special Report

By Victor Merina, IJJ Senior Fellow 

WASHINGTON – With hundreds of marchers rallying outside in cold, blustery weather, the Supreme Court listened to two hours of arguments over a pair of school desegregation cases and voiced skeptical questions that provided little warmth to affirmative action advocates.

In Monday’s hearing, some justices questioned whether school systems can use race in making school assignments, and they appeared reluctant to uphold the position that the benefits of racially diverse public schools makes such a stance constitutional.

The justices are reviewing student-assignment plans in two urban school systems – Louisville, Ky. and Seattle – offering students a choice of schools but also denying them admission based on their race if enrolling at a specific school upsets the racial balance.With a new conservative majority on the Supreme Court, the cases have attracted widespread interest.  And if the justices rule against the school districts, depending on how the decision is written, the outcome could force hundreds of districts nationwide to change or discard voluntary integration plans.

The high stakes were emphasized not only in the courtroom but on the sidewalks outside where pro-affirmative action marchers – many of them high school and college students from around the country – chanted and marched and waved signs as temperatures dipped in the 30s and a biting wind drove the chlll factor even lower.  Many people braved the cold to line up in the pre-dawn hours in hopes of securing a seat in the courtroom and listening to oral arguments in the Seattle or Louisville case.

For some who sat and listened to the proceedings, there was no mistaking the hostile tone of some justices as they questioned attorneys.  In the New York Times, Linda Greenhouse wrote that the attorneys for the school districts seemed to make little headway in defending their programs and “the only question was how far the court would go in ruling such plans unconstitutional.”

Greenhouse, who covers the Supreme Court for the newspaper, added that there “seemed little prospect” that either plan would survive “the hostile scrutiny of the court’s new majority.”In analyzing the court’s reaction, Slate’s Dahlia Lithwick concluded that “what is rapidly clear is that these cases are less about doctrine, or even social science, than about visceral impressions.” 

And that impression does not favor affirmative action proponents, she writes. Francis Mellen Jr., who represents the Jefferson County School District that includes Louisville, acknowledged the sharpness of Kennedy’s questions but refrained from interpreting what that meant.  “I think Justice Kennedy asked tough questions of both sides.  Justices are entitled to do that,” he said.  “I don’t know what to read into that.”Mellen said his message to the justices was simple on behalf of Louisville school officials.  “They now have voluntary student assignment plan that works.  It has provided benefits to the children of Jefferson County, and we walk to keep it. That’s the message I wanted to get across.”

But Theodore Shaw, director-counsel and president of the NAACP Legal Defense and Educational Fund, told reporters following the hearing that Justice Kennedy has always been problematic when it comes to school desegregation cases.  And he said this court ruling would be monumental.“If this court turns around the possibility of preserving even a sliver of voluntary school integration it will be a reversal of historic proportions,” Shaw said.  “We hope upon deliberation that the court stays the course that allows these districts to do what they fought so hard to do for so long and that we don’t send this country backwards.”

Opposing lawyers, not surprisingly, had a different view.  Harry Korrell, who addressed the court as the lead attorney opposing the Seattle school district, said he thought the justices understood the impact of their ruling.I think the justices asked questions that were focused more on the big picture and larger implications of this case nationally than the Seattle situation,” said Korrell who represents a nonprofit group called Parents Involved in Community Schools.

In fact, Justice Anthony Kennedy who has been viewed as a key vote in forming the court majority, was among those expressing deep skepticism about Seattle's program.Kennedy, at one point, said the district seems to be telling students that the question of whether or not they were admitted to a preferred school depended in some cases on skin color.  “It’s like saying everybody can have a meal but only people with separate skin can get the dessert,” he added.Justice Antonin Scalia said that by assigning students to schools they didn't ask to attend based on their race, the district appeared to be saying "you can't make an omeley without breaking any aggs."The court is expected to issue its ruling next spring, and afterwards attorneys for both sides sought to remain optimistic about the outcome.

“If you let students choose the schools they want to go to rather than inisisting that they go to a neighborhood school or insisting that they go to a school because of racial composition the schools will wind up being diverse and the parents will have the kind of chose they say want to have.”Michael Madden, the attorney representing the Seattle school district, was asked by reporters if officials had a contingency plan should the Supreme Court rule against it.

‘The district’s always had backup plans,” he said, “which it’s using now which is trying to disperse choices to encourage integration.”As for the large crowd of demonstrators who showed up the hearing, many were from nearby Howard University but a number came from as far away as London and from states including Georgia, Louisiana, Massachusetts, New York, Kentucky, Washington, North Carolina and California. 

A contingent of college students, teachers and union members also arrived from Michigan where an anti-affirmative action proposal won overwhelming voter approval last month.Divoshia Mason, a freshman at Fayetteville State University in North Carolina, said she made the six-hour bus trip with about 50 other students. The 18-year-old student said she arrived at 4 a.m. in the nation’s capitol and was eager to be there because of fears that the setback in Michigan and a loss at the Supreme Court could undermine such fundamental decisions such as Brown v. Board of Education.“

My main concern is that this is not going to just affect us but also future generations,” she said.Mason and other demonstrators joined in chanting such slogans as “They say Jim Crow, we say hell, no!” as they marched outside the Supreme Court building.   Many held signs aloft carrying such admonitions to “integrate, not segregate” and to “defend affirmative action.” 

They were later led by a high school marching band as they made their way on a walk from the courthouse to the Lincoln Memorial where various speakers addressed the largely young audience.“We are building a new affirmative action movement,” said Shanta Driver, executive director of BAMN or By Any Means Necessary, an activist group that helped sponsor the rally. Among those standing on the steps in view of the Lincoln Memorial and the Washington Monument were two-dozen students from Los Angeles who held candy sales to help raise money for their trip. 

Some students were assisted by the Los Angeles City Librarians union, which paid transportation costs for eight students to make the trek to Washington.“I’m so glad I came,” said Marilyn Bran, a 15 year-old high school student at Los Angeles’ King Drew Magnet High School, as she gazed out at the crowd and the Washington setting.  “It was so important to be here.”