WASHINGTON — A closely divided Supreme Court on Thursday restricted the ability of public school districts to use race in assigning students to schools.
Affirmative action in education survives but with tighter limits under the decision in two related cases from Kentucky and Washington state. Districts in Louisville and Seattle, hoping to maintain diversity, had considered race when deciding which schools students could attend.
"The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen," Chief Justice John G. Roberts wrote for a 5-4 majority.
Roberts failed, however, to convince five justices to go further and dismiss completely the merits of what he termed "racial balancing." Justice Anthony Kennedy agreed that the school districts went too far in their racial policies but stressed that race still can be taken into account in other cases.
"To the extent the (Roberts' majority) opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools it is, in my view, profoundly mistaken," Kennedy wrote.
His concurring opinion effectively limits the decision's reach.
Even so, the much-anticipated decision means that race-based admissions and school-selection procedures must be revamped. By some estimates, about 1,000 school districts nationwide factor race into various decisions. Transfer policies, tutoring programs and magnet school programs face tougher scrutiny.
School districts in Los Angeles and Berkeley, Calif., already are facing legal challenges over race-based decisions concerning magnet schools and teacher assignments.
Other schools are likely to start using income and other socioeconomic factors instead of race in assigning students. North Carolina's Wake County assigns students based on the number who receive free or subsidized school lunches, said Sharon Browne of the conservative Pacific Legal Foundation, based in Sacramento, Calif.
"I do think that's what you're going to see," agreed Harry Korrell, one of the attorneys who challenged the Seattle policies. "It's going to require a good-faith effort by school districts."
Besides spurring further legal challenges, Thursday's decision reveals some heartfelt differences among the justices.
"Instead of accommodating different good-faith visions of our country and Constitution, today's (opinion) upsets settled expectations, creates legal uncertainty, and threatens to produce considerable litigation, aggravating race-related conflict," Justice Stephen Breyer wrote in dissent.
Breyer's at-times passionate dissent, spanning 77 pages, was nearly twice as long as Roberts' majority opinion. Congressional Democrats shared Breyer's alarm, calling the decision a blow to the notion of equal rights that was first enunciated in the famous 1954 Brown v. Board of Education ruling.
Three years ago, Breyer was in the 5-4 majority that upheld the use of race in admissions decisions at the University of Michigan Law School. Breyer's affirmative action ally Sandra Day O'Connor has since resigned and been replaced by Justice Samuel Alito.
Alito joined Roberts and Justices Antonin Scalia, Clarence Thomas and Kennedy in the main opinion Thursday striking down the Louisville and Seattle programs.
Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg joined Breyer in dissenting.
The University of Michigan Law School decision still stands, and diversity still can be considered in admissions so long as schools don't apply racial quotas or something similar. The court's 5-4 majority Thursday further noted that diversity must be viewed as more than simply a racial classification.
Roberts and the majority agreed that the Louisville and Seattle school-assignment policies weren't "narrowly tailored" enough to meet the Constitution's equal protection guarantees.
The majority further distinguished elementary and secondary schools from what they called the "unique context" of higher education, where diversity might be more important for the academic experience.
"We are relieved and vindicated," said Kathleen Brose, the president of Parents Involved in Community Schools and one of the Seattle parents who began challenging the city's school policies six years ago.
The court considered the Washington and Kentucky cases together. Both showcase the question of whether race-based admissions violate the 14th Amendment's Equal Protection Clause.
Washington's Seattle School District No. 1 allowed entering ninth-graders to choose which high schools they wanted to attend. Some schools proved more popular than others.
About 60 percent of the school district's 46,000 students were Asian, African-American, Latino or Native American. District officials considered race as a "tiebreaker" when assigning students so that neighborhood schools wouldn't be segregated.
The policy meant some white students couldn't get into the very popular Ballard and Hale high schools in north Seattle.
Kentucky's Jefferson County Public Schools cover a broader area, educating some 97,000 students in the Louisville area. About one-third of the students are African-American.
Unlike Seattle schools, the Jefferson County schools once had been segregated. The district tried to maintain a minimum African-American enrollment of 15 percent at each of its schools, and in doing so refused a white student's request to be assigned to a particular school.
With so much at stake, several dozen organizations and alliances from all sides weighed in.
"Together, these decisions will put an end to public schools using race as a factor to decide where children can attend public school, something that many thought was put to rest (previously)," said Browne, of the Pacific Legal Foundation.
From the other side, 19 former chancellors of the University of California argued in an amicus brief that "racially integrated public schools strengthen the fabric of our diverse democracy."
The cases were Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education.