When the U.S. Supreme Court agreed in June  to hear two cases about the use of race as a factor in elementary and secondary public school assignments, many in higher education were understandably intrigued.
After all, this would be the first chance to listen to the newly configured -- and more conservative -- court consider the role of affirmative action in education. And it would be an opportunity to hear from Chief Justice John G. Roberts Jr. and bench-mate Samuel A. Alito Jr., neither of whom were on the court in 2003 when it narrowly upheld race-conscious admissions in higher education in its decision involving the University of Michigan Law School.
Both Roberts and Alito have criticized the use of racial classifications, and Roberts in particular seemed unconvinced during oral arguments Monday that school districts in Seattle and Louisville, Ky., had a compelling governmental interest to justify the use of race in assigning students to public schools. Early in the discussion, he asked the lawyer representing the Seattle School District, "How does [the plan] not present narrow tailoring problems?," a reference to the Supreme Court's prior standard (known as "narrow tailoring") as to whether race can be used in college admissions.
The composition of the court has come under scrutiny, in part, because Alito replaced the retired Associate Justice Sandra Day O'Connor, who wrote both Grutter v. Bollinger , which upheld the holistic admissions policy used in Michigan’s law school, and Gratz v. Bollinger, which struck down the point system used in Michigan’s main undergraduate college. In both cases, the Supreme Court said that diversity in higher education is a compelling government interest.
Last year, when O'Connor was still on the bench, the court decided against hearing a similar challenge to a race-conscious student assignment plan in Massachusetts. The fact that the court accepted such a case in this term is viewed as indicative of its renewed interest in looking at the racial classification issue.
What remained unclear heading into Monday's proceedings was whether the court would, as some had speculated, tip its hand about the possibility of revisiting the Michigan cases. Two hours of discussion showed that if the high court plans to reconsider affirmative action in higher education, it will do so without substantial foreshadowing.
To the extent that the University of Michigan cases came into play, it was mainly in the context of applying standards and drawing differences between those cases and the K-12 cases under review Monday. Parents Involved v. Seattle School District ( 05-908 ) and Meredith v. Jefferson City Board of Education (05-915 ) have no direct relation to higher education. Both cases involve past efforts by school districts to promote racial integration by taking race into account in the schools to which students are assigned.
In both instances, federal appeals courts sided with the school districts, in part based on the Supreme Court's decision in the Michigan cases.
Many who filed amicus briefs with the court said that enrolling a critical mass of minority students improves cross-racial understanding, just as defenders of affirmative action in Michigan said that a diverse student body benefits the entire population. Francis Mellen, the lawyer representing Louisville's Jefferson County Board of Education, argued that the board's policies met the "narrowly tailored" standard. Michael Madden, who represented the Seattle School District, pointed out what he saw as the main differences in the cases.
"This is not like being denied admission to a state's flagship university," Madden told the justices. "This is not a selective or merit-based system. Students are not being denied admission; they are being redistributed. We do consider other factors before we get into race." (The Supreme Court held in the Michigan cases that race can be among the factors taken into account in admissions, but that a "quota" system is unconstitutional.)
Several justices made the point that the Seattle assignment system merely sorts students among equally beneficial options, whereas the Michigan Law School is seen as being an elite institution that is above other options.
"None of the schools was a prize like the University of Michigan Law School," said Associate Justice Stephen G. Breyer.
Added Associate Justice Ruth Bader Ginsburg: “Everyone gets to go to a school. No one gets left out of the system. It’s not like the affirmative action cases."
But Harry Korrell, the lawyer representing the Seattle parents, who argue that their children did not get into their top school choice because they were white, said he disagreed with Ginsburg's notion because the case comes down to whether a student got into his or her first-choice school.
Korrell had backing from the bench. Associate Justice Anthony M. Kennedy, who some believe will cast the deciding vote in this case, said that "the question is whether you can get into a school you really prefer," and if the admissions decision is based, in some way, on skin color.
Opponents of the school districts' plans said that the policies fall outside the boundaries set by the court in the Michigan cases -- and that race is in some cases the sole determining factor of whether a student is admitted. The Bush administration has sided with the parents in both cases.
A decision on the cases is expected by late spring.
Meanwhile, outside the Supreme Court on Monday, dozens of college students rallied in support of using race as a factor in college admissions and in assigning students to K-12 schools.