Down but Not Out

...Specifically, he endorsed "a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component," in a manner "informed by Grutter...

...One such method, used in several instances by charter schools, was admission by lottery...

...But there are other, better options...

...In dissenting from the Grutter holding, Justice Kennedy himself pointed out as much, attacking the majority for failing to closely scrutinize the law school's own "assurances that its admissions process meets with constitutional requirements...

...Students rely on the predictive power of those grids in deciding where to spend their money on application fees, no less so for public schools like Michigan than for any other...

...Under such a system, it would be easy to deny a student's transfer request on racial grounds without appearing to do so...

...Because the Seattle and Louisville school districts considered by the Court also used rigid percentage systems, it's a safe bet that Parents Involved will indeed bring an end to overtly race-based policies like those in Lynn...

...The report focused on institutions of higher education but contained options for elementary and secondary schools as well...

...Yet few people involved in the process of applying to law school seriously believe that admissions—to Michigan or elsewhere—boil down to much more than a numerical formula based upon GPA, LSAT score, and race...

...Henry Ford's class of 2003 scored above the state average on the Michigan Educational Assessment Program (MEAP) exam in reading and math...

...The extent to which school districts may racially classify their students going forward depends, first, on the manipulation of loopholes left open by the Court's opinion and, second, on the deciding vote of Justice Kennedy, who stated separately that he believes it "cannot be a universal constitutional principle" that "our Constitution is color-blind...

...All a district would need to do is fashion a policy simultaneously concerned with race along with, for example, geographic location, student preference, and available space, and refrain from establishing specific racial quotas...

...Another race-neutral alternative cited by the report considers socio-economic standing...

...In 2004, the Office for Civil Rights of the Department of Education released a report outlining potential race-neutral methods for achieving classroom diversity...

...1 et al...

...The first—and worst—is simply to accept the invitation of Justice Kennedy to promulgate a formal, individuated policy for making student transfer decisions and, behind that smokescreen, to proceed on racial grounds exactly as before...

...Schools in Wake County, N.C., La Crosse, Wisc., San Francisco, Charlotte, Bran-dywine, Del., and Cambridge, Mass., have all developed unique means of allocating students on this basis, without regard to race...

...by Erin Sheley In March 1999, Samantha Comfort of Lynn, Massachusetts, tried to enroll her daughter Elizabeth at the only Lynn public school close enough to her job that she could pick the kindergartner up on time each day...

...On its own terms, Parents Involved leaves the door open for a great deal of tacit race discrimination by public school districts...

...School districts wishing to avoid running afoul of Parents Involved have a wide range of options...

...What does this mean...

...Chief Justice John Roberts was joined by Justices Scalia, Thomas, and Alito in holding that the goal of racial balancing in and of itself, even under the warm, fuzzy name of "diversity," can never constitute such a compelling state interest...

...Any use of racial classification by a governmental body is subject to "strict scrutiny" by courts under the Fourteenth Amendment—it must be "narrowly tailored" to serve a "compelling state interest...

...At least one Ivy League college publishes a "grid" of (anonymous) law school admissions decisions for a prior class of its seniors, listing the GPA, LSAT, and, of course, race of each applicant...

...Henry Ford Academy in Dearborn, Michigan, for example, employs an accounting firm to select students at random from a lottery open to all rising Wayne County, Mich., ninth-graders...

...Other schools employing lottery methods include the North Star Academy in Newark and the Amistad Academy in New Haven...

...He noted, "The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity...

...It is therefore an open question whether a school district could make use of nondeterminative racial classifications without running afoul of Parents Involved...

...In contrast, in the Seattle and Louisville plans, race was, for certain students, "determinative standing alone...

...The legitimacy of such a plan would then depend on whether Justice Kennedy returns to the hard line he adopted in his Grutter dissent, or hews to his more recent endorsement of considering the extent to which a policy is "informed by Grutter...

...Far easier, in fact, than in a merit-based process like graduate school admissions...

...Furthermore, Justice Kennedy, whose concurring vote was critical to the 5-4 majority, made it clear that he disagreed with Roberts that targeted racial composition could never be a sufficiently compelling state interest to pass Fourteenth Amendment muster...

...At the very least, parents should never again have to tell their children that they can't attend school with their friends because their school has classified them as "nonwhite...

...While the Court noted that the compelling state interest at issue in Grutter was student body diversity specifically in the context of higher education, Roberts's opinion does not foreclose the possibility that a University of Michigan-style balancing test could be acceptable at an elementary or secondary school level...

...Grutter, written by now-retired Justice Sandra Day O'Connor, turned on the fact that the law school—rather than employing specific racial quotas—evaluated each applicant with an eye to "producing classes both diverse and academically outstanding," taking into account the school's commitment to racial diversity as one of a number of factors affecting each admissions decision...

...Two weeks ago, the parents went to court again, filing what could be the first of many challenges to similar court rulings in light of the Supreme Court's recent rejection of race-based student assignment plans in Parents Involved in Community Schools v. Seattle School District No...

...While all of these systems pose challenges in execution, they serve the purported goal of racial classification—ensuring that disadvantaged students are not segre-gated—without resorting to outright racial discrimination...

...The school refused to take Eliz-abeth—not because it didn't have space for another child, but because it didn't have space for another white child...

...If racial considerations in a context as numbers-driven as law school admissions can survive equal-protection scrutiny based on a school's paper policy, it would be a simple matter for a public school district to construct a similar balancing test...

...children to a back seat in the race for life's chances...

...Soon enough, in the Lynn case or some other, the Court will be asked to stop districts from circumventing this holding, and it should...

...Enraged, Comfort and a group of other parents brought a constitutional equal protection claim against the Lynn School Committee, which prohibits "segregative" transfers of students between schools (i.e., transfers that would bring the percentage of "nonwhite" students in each school outside the targeted range of 43 percent to 73 percent...

...O'Connor's opinion in Grutter lingers in the Michigan law school's own description of its admission policies: It seeks to "admit a group of students who individually and collectively are among the most capable," and it requires that admissions officers evaluate each applicant "based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to Law School life and diversity"—all of this in addition to the applicant's grade point average (GPA) and Law School Admission Test (LSAT) score...

...Yet the case cannot be read as mandating the absolute race neutrality sought by Fourteenth Amendment literalists (much less has it, as the NAACP homepage wails mixed-metaphorically, "condemned minority Erin Sheley is a writer and attorney in Washington, D.C...

...In 2005, a federal appeals court rejected their claim and upheld the school district's racial plan...

...Any pre-law college senior can point you to the online calculators that spit out an applicant's likelihood of admission to a given school based upon those two numbers...

...Yet, critically, Roberts's opinion defined "racial balancing" against the backdrop of the Court's 2003 decision in Grutter v. Bol-linger, which upheld the University of Michigan Law School's use of race as a factor in admissions...