Sordid Business: The Supreme Court Confronts the Constitutionality of Racial Preferences in K-12 Education
March 16, 2007William E. Thro, Charles J. Russo
It is a sordid business, this divvying us up by race.—Chief Justice Roberts
The Chief Justice’s words, written in the context of a congressional redistricting case, are equally applicable to the nation’s public schools in the early years of the third millennium. While Brown v. Board of Education merely requires the elimination of the vestiges of de jure segregation to the extent practicable and while de facto segregation “does not have constitutional implications,” local school districts continue to insist on “divvying us up by race.” Specifically, many school boards have engaged in such practices as lowering admissions standards at competitive high schools for racial minorities, reserving set percentages of places for various racial groups, and assuming that anyone who is a racial minority has a unique perspective or set of life experiences. Although such programs are constitutionally dubious and were repeatedly rejected by the lower federal courts, the University of Michigan racial preferences cases, Grutter v. Bollinger and Gratz v. Bollinger, have provided the school districts with new arguments for this “sordid business.” Indeed, in the three years since Grutter & Gratz, four different Circuits reviewed the constitutionality of using racial preferences to eliminate de facto segregation.