The Roberts Court: The Struggle for the Constitution (5 page)

As they prepared to march down Capitol Hill toward the Lincoln Memorial, the line of people hoping to get seats in the courtroom that day continued to grow on the Supreme Court’s plaza under the watchful eyes of the Supreme Court police.

At 10 am sharp, the courtroom buzzer signaled those inside to stand as the justices stepped from behind the maroon velvet curtain and prepared to hear the first arguments of the day. On the calendar that morning were two cases that embodied the nation’s long and divisive struggle with racial discrimination. By the end of the Supreme Court term, the opinions in the two cases would reflect shattered hopes for greater consensus among the justices and bitter feelings of betrayal on
both sides of what had emerged as the deepest divide on the fledgling Roberts Court.

The justices were being asked to judge the constitutionality of attempts by local, elected school boards in Seattle, Washington, and Louisville, Kentucky, to maintain racial diversity in their primary and secondary schools.

A group of Seattle parents whose children did not get into their top choices of high schools challenged the constitutionality of the district’s use of race as one factor in its student assignment plan. And a Louisville mother whose son could not attend the kindergarten program closest to his home initiated the lawsuit attacking that district’s diversity plan.

These were not the first race-related cases to come before the new Roberts Court. In its first term, the 2005–06 term, the Roberts Court, which by then included Justice Samuel Alito Jr., took up a challenge to a congressional redistricting plan drafted by the Texas state legislature mainly to protect and enhance the chances of Republican candidates. In highly splintered opinions, the Court largely upheld the Texas plan but struck down one congressional district because it diluted the voting power of Latinos in violation of the federal 1965 Voting Rights Act.

It was in the Texas case—
LULAC v. Perry
—that Chief Justice Roberts, who dissented from the decision’s holding on the constitutionality of a Latino district, wrote a line that was, at once, both striking and ominous to civil rights groups: “It is a sordid business, this divvying us up by race.”

A redistricting case—complex, highly partisan, and, in the end, local—was unlikely to capture the attention and emotions of many Americans, not like a school case could. Most parents either had or soon would have to deal with finding the best possible schools for their children and with their districts’ plans for assigning students. The Seattle and Louisville cases had an additional element: they put in play the meaning and continuing import of the revered Warren Court 1954 landmark ruling that struck down school segregation:
Brown v. Board of Education
.

From
Brown
going forward, the Supreme Court and lower federal courts had struck down laws and policies that used race to separate children in public schools. The Supreme Court had never ruled in a case where the challenge was to the voluntary use of race to achieve the benefits of diversity and to end racial isolation of students.

The Seattle and Louisville cases would offer the first close-up look at the views of Roberts and Alito on whether racial diversity was a compelling interest in elementary and secondary education.

David Engle stood in the line on the Court’s plaza that morning and tried to keep warm. He had arrived early to increase his chances of getting into the arguments, but not as early as a group in front of him who had camped out Sunday night, braving freezing temperatures, to be first in line.
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Engle had not planned to attend. The trip from Seattle was long and expensive. And besides, he had moved on. Four years earlier, he had resigned as principal of Ballard High School in Seattle in protest of the district’s decision to drop the so-called race tiebreaker in the district’s “open choice” assignment plan even as it continued to defend it in the courts. A student’s race was one of three considerations used by the district to fill slots at oversubscribed high schools whose student populations deviated more than 15 points from the districtwide racial demographic of 40 percent white and 60 percent non-white.

Before becoming Ballard’s principal, the silver-haired, soft-spoken Engle had been a high school principal in a district across the lake from Seattle. He was drawn to Seattle by Superintendent John Stanford’s vision for the school district and its growing success in increasing diversity in the predominantly white schools in north Seattle without the heavy hand of forced busing.

Ballard was his dream job. Engle lived in the Ballard neighborhood, could walk to the high school, and was given the opportunity to create a world-class academic program in a brand-new facility. The old high school had been torn down and rebuilt into a state-of-the-art facility, and its popularity among parents was on the rise.

“I felt, as a principal, the race tiebreaker allowed me to bring into play a dynamic that I was told by my students over and over again was a real positive,” he said. “When I moved the [student] wait list into the school, I looked at that. I thought it was an asset. I had just created an international program where I didn’t have the kind of diversity that would have made the program really rich. I wanted to create a school that didn’t give lip service to the notion of diversity.”

When Engle became principal in 2000, the school’s racial composition was about 70–30 white. When he left, he had moved the composition to about 57–43 white.

“The first week I was on the job I had a visit from parents who ended up being in the group behind the lawsuit. They lived outside of the Ballard neighborhood and wanted me to move the wait list so their kids could come to Ballard. I said it couldn’t happen. I had full capacity. I knew there would be issues around that.”

Two years later, after the parents’ group, known as PICS (Parents Involved in Community Schools), won its first court victory, Engle felt he personally needed to do something concrete to show his commitment to diversity and to the use of the race tiebreaker as a tool that principals should have available to them. He announced his resignation to his students in the high school auditorium and explained why. His action stunned parents and colleagues, some of whom applauded him while others criticized him.

Finding another principal’s job after his resignation was “a little tough” for a while, he recalled, describing himself as somewhat “politically radioactive” because of his action. But the district offered him a position advising its high schools and he accepted.

“I worked with all ten of the high schools at some point,” he said. “The inequities in the high schools were shameful. The poorest quality academic programs were reserved for predominantly schools of color, across the board. For me, that was the larger shame. Seattleites could be pretty smug about that, saying, ‘Those kids want to go to neighborhood schools.’ ”

After about two years working with the district’s high schools on a variety of problems, Engle moved to Bellingham, Washington, to take a position as a high school principal.

He found himself standing on the Supreme Court plaza that December 2006 morning because of a phone call from a Ballard parent who asked Engle if he was going to the arguments. “I said no, and this parent said, ‘I’m going to buy you a plane ticket and you’re going.’ It was the right thing to do,” he admitted. “Ballard was at the heart of this controversy.”

Kathleen Brose was also at the Supreme Court that morning with another parent, Jill Kurfirst, but they did not have to wait in line for a seat. Brose, a determined, down-to-earth mother of two daughters, had been the face, voice, and driving force of Parents Involved in Community Schools for the last six years. She had attended every court hearing on the lawsuit during those years with the group’s main lawyer, Harry Korrell of Seattle’s Davis Wright Tremaine. She and Kurfirst had arrived a day early at the Supreme Court.
²

Brose, who teaches piano in her home, became involved in the school district’s high school assignment plan in 1999 as her older daughter prepared to enter her freshman year in 2000. Under the plan, known as “open choice,” students and parents ranked their choices of the city’s ten public high schools. The district used three tiebreakers to assign students to schools that could not accommodate all of those seeking admission: whether the applicant had a sibling in the school; how the applicant would affect the racial composition of the school; and the applicant’s distance from the school.

Brose’s daughter, who is white, did not get into any of her top three choices, all in majority-white north Seattle: the brand-new Ballard, which was closest; Nathan Hale, a little farther north; and Roosevelt, also north of Ballard. She was assigned to her fourth choice, Franklin, in predominantly minority south Seattle, but because it had no orchestra program (she played the cello), she transferred to Ingraham, in northeast Seattle. Ingraham was one of the least popular schools and was located
at the city limits, far from her home. As a result of its location, Ingraham should have been an elite white high school, but it had lagged behind in educational quality for years. Brose’s daughter stayed there only a year because the district in the meantime had opened a smaller high school closer to where the family lived, and their daughter graduated from that school. But during her three years at Seattle Center High School, she had to rely on her mother to drive her to and from Ballard, where she played in that school’s orchestra.

Jill Kurfirst’s son, also white, had qualified for admission to Ballard’s biotechnology program, but he was not assigned to Ballard—his first choice—nor to his second and third choices. He was assigned to Ingraham.

In 2000, when Brose and her group were fighting with the school board over the assignment plan, the most popular choices for incoming ninth graders were Ballard, Roosevelt, Franklin, and Hale.

As Brose prepared to enter the Supreme Court for arguments in the school challenges, she believed that many people still misunderstood what was at the core of the two cases. The day before, she had faced “some rather aggressive” media interviews, she recalled.

“A lot of people thought we were racists and we wanted our kids to stay in these lily-white schools and our schools aren’t that way if you look at the statistics,” she said. “I said we like diversity but we like neighborhood schools. I tried to hammer that over and over. I didn’t want parents to go through this. I’ve been told I am as tenacious as a bulldog and I am. I said this before I even knew who Sarah Palin was, ‘I’m a momma bear just protecting her cubs.’ I said, ‘This race tiebreaker, this just isn’t right.’ ”

The Brose family lived in Seattle’s Magnolia neighborhood, and Kurfirst, the other mother with Brose at the Supreme Court, lived in nearby Queen Anne neighborhood. Seattle is shaped like an imperfect hourglass. The Ship Canal, a narrow waterway, cuts the city in half from Lake Washington to the east, through Lake Union, and on to the Puget Sound to the west. The canal has been described by some
as Seattle’s “Mason-Dixon line” because the city’s predominantly white neighborhoods are north of the waterway, and to the south are the ethnically and racially diverse central district and south end. Magnolia, the city’s second largest neighborhood, sits on a hilly peninsula northwest of the city’s downtown area. It is home to some of the city’s wealthiest residents, whose houses command sweeping waterfront views. By and large, however, it is an upper-middle-class community of about 22,000, with median income of about $69,000 and median house values of $534,000. The neighborhood’s racial composition is 87.4 percent white; 5.8 percent Asian; 1.6 percent African American; 0.6 percent Native American; 0.3 percent Pacific Islander; 1 percent other races, and the remainder from two or more races.
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Magnolia is isolated geographically from the rest of Seattle and its residents get into the city by crossing one of three bridges. Queen Anne, to the southeast of Magnolia, borders the north end of the center and covers the city’s highest hill. The community has a population of about 32,000, including a large number of young single adults. The median income is $49,000 and the racial composition is similar to Magnolia’s.

Unlike Jefferson County School District in Kentucky—the target of the second school challenge in the Supreme Court that December morning—Seattle had never been under a federal court order to desegregate its schools, but that did not mean there was no problem in the schools.

Although
Brown v. Board of Education
outlawed segregated schools in 1954, the hard work of desegregation did not begin until almost a decade later and then often under orders by federal courts. In 1962, Garfield High School, located in Seattle’s central district, became the first predominantly black high school in the state, with more than 51 percent black students. More than half of the city’s other high schools had no more than five black students. That grim picture triggered a lawsuit against the school district by the Seattle chapter of the NAACP. The district, settling the suit out of court, appointed a committee to address
“gross racial imbalance” in certain city schools. That imbalance mirrored Seattle’s long history of housing segregation.
⁴

A voluntary student transfer program was launched, and at its peak nearly ten years later 2,604 students participated, of whom 2,200 were black. There were additional attempts to promote voluntary integration—magnet programs at certain schools, for example. But by 1977, the district claimed that twenty-six schools remained racially imbalanced.

In that year, the NAACP filed a complaint with the U.S. Office of Civil Rights, and the American Civil Liberties Union and the Church Council of Greater Seattle threatened to file a lawsuit. By the end of that year, the school board had approved a mandatory busing plan, and the city became the first in the nation to adopt a comprehensive school desegregation plan without the sledgehammer of a federal court order.

Two months after the plan took effect, 61 percent of Seattle voters and 66 percent of voters statewide approved an anti-busing initiative sponsored by the Citizens for Voluntary Integration Committee. The U.S. Supreme Court in 1982 found the state initiative unconstitutional.