SCOTUS To Hear High School Race Cases

Since the Supreme Court decided the University of Michigan affirmative action cases in 2003, there has been much speculation about whether school districts could use the reasoning in those opinions to enter into voluntary busing and school assignment plans for non-remedial purposes. Those cases were decided 5-4, with Sandra Day O'Connor the deciding vote. Her replacement by Samuel Alito makes this area of the law highly unstable.

So it was with some degree of surprise that I read today that SCOTUS has agreed to hear to cases, presumbably to be consolidated, from Seattle and Louisville on voluntary, non-remedial student assignment plans that are attempting to engage in "racial balancing" in those districts. Presumably, confusion amongst the circuit courts have prompted SCOTUS to take a case (or cases, rather) that it would rather not take.

Essentially, the argument from opponents of the school district plans in question here believe that race should never figure into school assignment plans for any non-remedial reason. This argument is premised on the Equal Protection clause requirement of strict judicial scrutiny when race is involved as a classification, and the argument goes that racial balancing does not survive that strict level of scrutiny, and is not a compelling governmental interest. Proponents argue the opposite, and it really is that simple.

My not-so-bold prediction is that this case will come out 5-4, with Justice Alito "switching" the vote of Justice O'Connor. High school plans of a non-remedial nature will be disallowed. However, I don't believe the court will go so far as to overrule the 2003 cases, because it won't be necessary for the disposal of these cases; high schools and colleges are different enough to support differing constitutional schemes. Nevertheless, this area of law is in flux, and over the next few years Justice Alito's presence on the bench, and his areas of difference with Justice O'Connor, will probably be felt more clearly here than in most other areas of the law.

For a good discussion of the issue, see this article on the always useful and informative SCOTUSblog.