District Administration - September 2012 - (Page 90)

Professional oPinion As a result, courts and schools struggled for 20 years to follow Bakke with little to no certainty of the constitutionality of their policies. Then in 2003, the Court accepted two new cases involving race-based admissions policies, Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the Court upheld a law school admissions policy that considered race as one of many student characteristics that would contribute to school diversity. But the Court’s nearly simultaneous decision in Gratz struck down a policy that automatically awarded twenty bonus points to a minority applicant to an undergraduate program. Therefore, taken together, Grutter and Gratz stand for the proposition that race may be one of many factors considered in higher education admissions, but it cannot be the sole factor. Four years later, the Supreme Court considered race-conscious placement policies in K12 schools in Parents Involved in Community Schools v. Seattle School District No. 1. In that case, the Seattle and Jefferson County School Districts each implemented a policy where the race of individual students was used when assigning them to schools. A majority of the Court held that the districts’ methods were not narrowly tailored to meet a compelling government interest because the districts failed to consider race-neutral alternatives and also because the policy resulted in only minimal impacts. Notably, the Court did not decide whether achieving diversity is a compelling government interest for K12 schools. Additionally, the Court specifically stated that Parents Involved was not governed by Grutter because that case dealt with a university as opposed to a K12 school. Districts must tread carefully When this body of law is examined in its entirety, it becomes clear that the DOE’s guidelines are based on a highly selective, and therefore dangerous, reading of the law. The DOE relies upon cherry-picked portions of concurring and dissenting 90 September 2012 opinions from Parents Involved to assert that a majority of the Supreme Court has conclusively recognized that “obtaining the benefits that flow” from racial diversity is a compelling interest for K12 schools. But the Court expressly declined to rule on that very issue in Parents Involved. Further, the DOE fails to note that two members of its alleged “majority” are no longer on the Court—Justices Stevens and Souter. Equally problematic opined that the Court’s decision to reconsider this issue may be tied to the DOE’s release of its guidelines. Whatever the Court’s motivations, it is unlikely that its opinion in Fisher will have significant meaning for K12 districts since the Court has long distinguished between policies applicable to colleges and universities and those governing K12 schools. Given the continued uncertainty in this area of the law, following the DOE’s guidelines will The DOE states that districts need only use race-neutral approaches if they are “workable,” but it does not define what constitutes a workable alternative. is the DOE’s reliance upon Grutter as justification for its guidelines, when the Supreme Court specifically stated that Grutter is not applicable to elementary and secondary schools. Another potential minefield for districts is the language employed by the DOE in its guidelines. For instance, the DOE states that districts need only use race-neutral approaches if they are “workable,” but it does not define what constitutes a workable alternative. Consequently, districts that opt to use race in admissions leave themselves open to lawsuits in which different courts may have different opinions of whether a district made sufficient efforts to find a workable race-neutral policy. Political and legal implications Not surprisingly, the political and legal implications of the DOE’s guidelines remain to be seen. However, in February 2012, the Supreme Court granted certiorari to hear Fisher v. University of Texas-Austin. That case questions the legality of UT’s consideration of race as one factor for admission. A federal district court upheld UT’s policy in 2009, and a three-judge panel of the Fifth Circuit confirmed that it did not violate the Equal Protection Clause. Experts have not provide complete protection to even the most well-intentioned district. This is particularly true given the significant discrepancies between the DOE’s conclusions and the Supreme Court’s opinions in Grutter, Gratz and Parents Involved. The DOE’s guidance represents the opinion of its lawyers, a status far removed from legally binding precedent. Attorneys fees to defend this type of lawsuit are an expense most districts cannot afford, especially considering that statutes may permit plaintiffs to recover their fees in the event they successfully challenge a race-based policy. Until there is authoritative guidance from the Supreme Court on race-conscious policies for K12 schools, school districts would do well to avoid using race as a factor in admitting or allocating students. DA John Munich is a partner in the St. Louis office of Stinson Morrison Hecker LLP, where he is the practice group leader for Stinson’s Education Litigation Group. John has tried over a dozen major school-funding and school-desegregation lawsuits. Jamie Boyer is a partner and member of the Education Litigation Group at Stinson Morrison Hecker LLP. She assists states in evaluating and formulating their school funding formulas and has represented several states in school funding litigation. Erin Guffey is an associate in the St. Louis office of Stinson Morrison Hecker LLP. District Administration

Table of Contents for the Digital Edition of District Administration - September 2012

District Administration - September/October 2012
Contents
From the Editor
Letters
News Update
Curriculum Update
Inside the Law
District Profile
Administrator Profile
Product Focus
Resistance to High-Stakes Testing Spreads
Postgraduation for Special Needs Students
Rick & Becky DuFour
CIo News
Getting the Best ROI in Technology
Shaping a Digital Decade
Professional Opinion
Professional Opinion
Online Edge
Going Mobile
New Products
New Directions

District Administration - September 2012

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