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Race-Based Admission Policies in Public School Programs

In recent months, a number of federal courts around the country have struck down school district policies that use race as a factor in school program admission decisions. The courts appear to be expressing an increasing reluctance to support use of race-conscious criteria, even when a district's goal is as well intentioned as creating or maintaining a racially diverse student body. The Fourth Circuit Court of Appeals, the federal court of appeals with jurisdiction over South Carolina, recently issued two decisions on this issue.

The Lawsuits

The first case, Tuttle v. Arlington County School Board (September 24, 1999), involved the use of a "race-weighted lottery" to determine enrollment at a magnet school. The Fourth Circuit concluded that the practice violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In Eisenberg v. Montgomery County Public Schools (October 6, 1999), the Fourth Circuit concluded that a district's use of race as a factor in deciding whether to grant school transfer requests was similarly unconstitutional, even when the purpose was to maintain racial balance.

In Tuttle, the Arlington County Virginia School District operated a magnet school designed to provide instruction to kindergarten students in a "traditional" format. The District wanted the magnet school to have a diverse student body that approximated the racial makeup of the District's overall student population. As a result, the District accepted applications from its general student body without restriction, but filled openings by a lottery which was skewed in favor of those students from racial or ethnic groups which were under-represented in the applicant pool. Two unsuccessful magnet school applicants brought suit against the District, alleging that the District's lottery gave preferences to certain students based on race and, therefore, was unconstitutional.

In Eisenberg, a student challenged the Montgomery County Maryland School District's transfer policy, which considered, among other things, the impact that the transfer would have on the racial make-up of its schools. Under the transfer policy, the District compared the district-wide percentage for each racial/ethnic group to the percentage of each group attending a particular school. In simple terms, the District's policy was to deny a transfer if it would upset the racial balance of the originating or receiving school. In 1998, a student requested a transfer from his regular school to one of the district's math and science magnet programs located at another school. The district denied the student's request solely because of its "impact on diversity."

Defending Race as an Admission Factor

The districts in both Tuttle and Eisenberg did not deny that their policies used a student's race as a determining factor in program admission and transfer decisions. However, each district contended that its use of race-based criteria was constitutional because it had a compelling interest in achieving and maintaining racial diversity in their schools. In Tuttle, the district also argued that a diverse student population would result in better education for its children through continuous interaction with students from different backgrounds and racial groups. In Eisenberg, the district argued that use of race-based factors was necessary to prevent "racial isolation."

While not disputing that racially diverse programs benefit both students and the districts, the Fourth Circuit held that the race-based admission and transfer policies in Tuttle and Eisenberg were unconstitutional. According to the Fourth Circuit, race-based criteria will be upheld only when their use furthers a compelling governmental interest and is narrowly tailored to meet that interest. The Fourth Circuit assumed, without deciding, that achieving racial diversity is a constitutionally permissible goal, but held that the districts' race-based policies were not the only method to achieve diversity and were, therefore, not narrowly tailored.

These two Fourth Circuit decisions leave South Carolina school districts in a precarious situation, especially those which create or maintain special programs, such as magnet schools. On the one hand, a district likely cannot create a diverse student body by giving race-based preferences to program applicants or by denying transfers based on race. On the other hand, without taking steps to ensure diversity, districts may risk race discrimination suits or Office for Civil Rights (OCR) race discrimination complaints. Several South Carolina districts now face OCR investigations because the racial composition of their student bodies in their magnet programs do not reflect that of the districts' overall student population.

In light of the Fourth Circuit's recent decisions, may South Carolina districts use race-based admission factors? Districts operating under an on-going desegregation court order may have limited authority to do so. Desegregation orders, which result from a court's finding that the district discriminated in the past, are intended to require that discriminatory practices cease and that the present effects of past discrimination be erased. Thus, courts have held that remedying adjudicated discrimination by using racial preferences is constitutional.

Any such use of race-based criteria, however, should address the particular forms of discrimination identified by the court in its desegregation order. Further, the criteria must be carefully tailored toward removing that particular form of discrimination. If not, the race-based policy likely would be found unconstitutional. Districts which are not subject to court-ordered desegregation, such as in Tuttle and Eisenberg, including those districts operating under a desegregation policy or voluntary plan, will have greater difficulty justifying the use of race-based criteria. More simply put, districts not currently under a desegregation order likely cannot use race-based criteria as a factor for making admission or transfer decisions.

The Near Future

As evidenced by these two Fourth Circuit decisions, as well as the recent, similar decisions by other federal appellate courts, the issue of race-based admission criteria for public school programs clearly is evolving. We are likely to see more court decisions in this area related to whether racial diversity is a permissible governmental goal justifying the use of race in admission decisions and, if so, is the race-based admission criteria narrowly tailored. It also is likely that one such case will eventually be decided by the United States Supreme Court. In the meantime, districts need to carefully review any race-based admission or transfer policies, in light of the district's current desegregation status.

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