Aggressive questions from court in Seattle race case

WASHINGTON — To appreciate Monday's historic Supreme Court hearing on Seattle's use of race in school admissions, one needed only to look at the spectators.

Throngs turned out to hear the aggressive questioning by the divided court, including the widow of Thurgood Marshall — the first African-American Supreme Court justice who, as a young lawyer, argued and won the landmark school-integration case Brown v. Board of Education in 1954.

Also looking on was Sen. Edward Kennedy, D-Mass., who co-authored a brief supporting the Seattle and Louisville, Ky., school districts' use of race in assigning students to schools. And John Heyburn II, the U.S. district judge who ruled in the Louisville case, showed up to see what the court thought of his ruling.

Former Seattle Public Schools Superintendent Joseph Olchefske tried to attend but couldn't get a ticket.

Inside, all eyes were on Justice Anthony Kennedy, who set the tone of the hearing and is likely to be the key swing vote.

The court is using the cases involving the Seattle and Louisville districts to tackle the much broader issue of school integration. Parents Involved in Community Schools v. Seattle School District takes up the district's Open Choice policy, which, beginning in 1999, used race as a tiebreaker in admissions. The district suspended the policy in 2002 after parents sued.

Monday marked the first time since 2003 that the court has heard a school-integration case, but it's a very different court, with two new judges appointed by President Bush — Chief Justice John Roberts and Justice Samuel Alito.

The case could affect hundreds of school districts around the country that are grappling with how to achieve diversity in their schools, possibly leaving them with few legal ways to create it.

The original Brown case overrode local school-board policies in order to end racial segregation. Afterward, backed by federal courts, schools used racial preferences to promote integrated student bodies.

Federal appeals courts have upheld the Seattle and Louisville programs.

Justice Kennedy on Monday challenged lawyers for both sides on Seattle's use of the racial tiebreaker.

Kennedy asked the plaintiffs' attorney, Harry Korrell, to explain whether it is constitutional for a school district to establish a new school site based on racial diversity.

Korrell said the question was too hypothetical, leading Kennedy to respond, "Well, it may not be necessary for you but it might be necessary for us when we write the case.

"We're not writing just on a very fact-specific issue, " Kennedy said, and then jumped to the heart of the overarching philosophical and legal issue:

"Assuming some race-conscious measures are permissible to have diversity, isn't it odd to say you can't use race as a means?" he said.

That concern was echoed later by Justices Ruth Bader Ginsburg and David Souter, who repeatedly asked why, if racial diversity in education is an acceptable goal, using racial means to that end is not.

Ginsburg quoted an earlier appeals-court decision: " 'The choice is between openly using race as a criterion or concealing it through some clumsy or proxy device.'

"It's very hard for me to see how you can have a racial objective but a nonracial means to get there," she said.

The Seattle School District's attorney, Michael Madden, was questioned about the University of Michigan's affirmative-action program for law-school admissions, which the court narrowly upheld in 2003. He told Roberts it was different from Seattle's program.

"This is not like [students] being denied admission to a state's flagship university ... they are being redistributed," Madden said.

But Kennedy also seemed to express some skepticism about Seattle's racial tiebreaker.

He said to Madden, "The question is whether or not you can get into the school that you really prefer. And that, in some cases, depends solely on skin color. You know, it's like saying everybody can have a meal" but only some people "can get the dessert."

Seattle Public Schools' general counsel, Gary Ikeda, said he was somewhat heartened that the justices raised the issue of local boards' right to make school policy, though they didn't dwell on it.

But Ikeda's optimism wasn't shared by a lawyer for the National School Boards Association, Tom Hutton, who said the justices' decision to hear the cases "probably isn't a good sign."

A year ago, when Justice Sandra Day O'Connor was still sitting, the court declined to hear a case involving the Lynn School District in Massachusetts, whose facts are similar to those in the Seattle case. Hutton said the justices' decision to hear this case shortly after O'Connor's retirement indicates "they are ready to take the larger issue head-on."

"I think they are going to rein in the use of race," he said.

The Pacific Legal Foundation, which aided plaintiffs suing the Seattle schools, was part of the team fighting Louisville's school district. After the hearing, Pacific Legal Foundation attorney Sharon Browne said she was pleased.

She said the line of questioning by Justice Antonin Scalia made it clear that after Brown v. Board of Education, school boards should be prohibited from using race as a placement factor, because, she said, "they can't be trusted."

James Kelly, president of The Urban League of Metropolitan Seattle, said that increasingly segregated neighborhoods will be reflected similarly in schools.

"We have to move forward, but there may be more barriers to innovation in fostering diversity," he said.

A court ruling is expected by next summer.

Alicia Mundy: 202-662-7457 or amundy@seattletimes.com

Information from The Seattle Times archives was included in this report.