WASHINGTON - The Supreme Court on Monday wrestled with voluntary integration plans in public schools, asking whether Seattle's "Open Choice" program is an acceptable move toward student diversity or another name for illegal racial quotas.
At the start of two hours of argument, the justices referred repeatedly to a 2003 Supreme Court ruling that permitted the limited consideration of race to attain a diverse student body on the college level.
Does Seattle's program go too far in assigning some students to schools they didn't request? the justices wanted to know in questioning lawyers for the school district, the Bush administration and white parents whose children were assigned to high schools with heavy minority enrollment.
Justice Anthony Kennedy was among those expressing deep skepticism about Seattle's program.
The district seems to be telling its students that "everybody can get a meal," but that only certain people can get "dessert," Kennedy said. Justice Antonin Scalia said it was as though the district was saying "you can't make an omelet without breaking some eggs."
The justices were referring to the fact that some students have been assigned based on their race to schools they didn't ask to attend. The question, said Kennedy, is whether a student can get into the school the student really prefers.
Chief Justice John Roberts expressed concern about making school assignments "based on skin color" and not "any other factor."
Attorney Michael Madden, representing the school district, said race is but one factor, that it is relied on only in some instances and then only at the end of a lengthy process.
Madden drew a distinction between the Seattle school program and the subject of the court's 2003 decision, which narrowly approved the University of Michigan law school affirmative action admissions program.
"This is not like being denied admission to a state's flagship university," Madden told Roberts. The Seattle students are "not being denied admission, they are being redistributed."
Parents in Louisville, Ky., and Seattle are challenging school assignment plans that factor in a student's race in an effort to have individual school populations approximate the racial makeup of the entire system. Federal appeals courts have upheld both programs.
Amid the oral arguments, pro-affirmative action demonstrators bearing "Fight For Equality" placards marched on the sidewalk in front of the Supreme Court in a brisk wind. A parent-teachers group from Chicago and several civil rights groups were among those sponsoring the demonstration.
Demonstrators chanted "Equal education, not segregation" and "We won't go to the back of the bus, integration is a must." Some held signs that read "Stop racism now." Among the crowd were representatives of the National Organization for Women, the NAACP and students from Howard University.
Though outnumbered, there were some in the crowd from the other side.
"Regardless of how well-motivated, allowing the state to engineer racial mixing only creates racial stereotypes and increases racial tension," said Terry Pell, president of the Center for Individual Rights, a public interest law firm. "The court needs to put an end to state-mandated tinkering with race."
The school policies in contention are designed to keep schools from segregating along the same lines as neighborhoods. In Seattle, only high school students are affected. Louisville's plan applies systemwide.
"The plan has prevented the resegregation that inevitably would result from the community's segregated housing patterns and that most likely would produce many schools that might be perceived as 'failing,'" the Seattle school district said in its brief to the high court.
The Bush administration has taken the side of the parents who are suing the school districts, much as it intervened on behalf of college and graduate students who challenged affirmative action policies before the Supreme Court in 2003.
In 2003, the court upheld race-conscious admissions in higher education in a 5-4 opinion by Justice Sandra Day O'Connor.
The cases are Parents Involved in Community Schools v. Seattle School District No. 1, 05-908; and Meredith v. Jefferson