INTRODUCTION
Ever since the Supreme Court's invalidation of racially segregated public schools in Brown v. Board of Education, (1) America has wrestled with the challenge of successfully dismantling educational apartheid. In recent years, the federal judiciary has largely retreated from enforcing desegregation in school districts that were once under court supervision for engaging in intentional racial discrimination, finding that the vestiges of past discrimination have been satisfactorily ameliorated. (2) In some such unitary school districts, (3) as well as in districts in which no intentional segregation was ever identified by the courts, boards of education have voluntarily (4) implemented student assignment plans (5) designed to increase racial diversity. Many of these plans, particularly those explicitly relying on individual racial classifications, have come under legal attack as unconstitutional violations of the Equal Protection Clause of the Fourteenth Amendment. (6) In the absence of clear Supreme Court precedent on the matter, (7) federal courts have struggled with the question of what role, if any, racial classifications may constitutionally play in the assignment of public school students.
The modern history of racial classifications and public education begins with Brown. While in the immediate aftermath of Brown the Court remained deliberately ambiguous in prescribing precisely how the system of school segregation was to be dismantled, (8) many observers believed the Brown Court to have endorsed a principle of governmental race-neutrality, or "colorblindness," in declaring separate-but-equal schools unconstitutional, thereby outlawing only those forms of de jure segregation (9) that explicitly discriminated. (10) The ineffectiveness of mere colorblindness, however, in achieving meaningful school integration within the first fourteen years after Brown led the Court to endorse, and often require, race-consciousness as a method of accomplishing desegregation. (11) As a result, beginning with the seminal 1968 Green v. County School Board decision, the Court clarified the Brown desegregation mandate as charging school boards "with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." (12) In 1971, in Swann v. Charlotte-Mecklenburg Board of Education, the Court again made clear that merely facially race-neutral student assignment plans were not necessarily sufficient to remedy the constitutional injury in formerly de jure segregated school districts. (13)
Green and Swann, therefore, held that not only was race a permissible factor in student assignment, but that, at least in school districts found to have engaged in de jure discrimination, considerations of race, including racial classifications, were sometimes required. (14) Extrapolating from the Court's approval of race-consciousness in the context of remedying de jure discrimination, lower federal courts in the 1970s generally assumed, in the absence of Supreme Court precedent directly on point, that the voluntary use of racial classifications by unitary school districts for student assignment was constitutionally permissible. (15) In doing so, these courts often cited Chief Justice Burger's influential dictum in Swarm:
School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities....(16) In applying this dictum, the courts offered two interrelated compelling interests to justify the government's use of racial classifications, even under strict scrutiny. The first was the state's interest in preventing de facto segregation of its schools resulting from changing demographic patterns like white flight. (17) The second, related justification was the state's interest in an integrated learning environment for its students, a justification akin to the "diversity" rationale recognized in Justice Powell's opinion in Regents of the University of California v. Bakke. (18)
Although the Supreme Court approved of the use of racial classifications to remedy de jure segregation in public education, (19) and lower federal courts went so far as to approve of the voluntary use of racial classifications to achieve public school integration, (20) at around the same time a conflicting body of jurisprudence was developing that expressed skepticism toward the government's use of racial classifications in any context. The Court had announced its discomfort with racial classifications as far back as the 1940s, in Korematsu v. United States (21) and Hirabayashi v. United States. (22) While some might have thought that the Court's discomfort in Korematsu and Hirabayashi was based solely on the fact that the government was using racial classifications to oppress a racial minority, (23) Justice Powell's 1978 Bakke opinion (24) announced strict scrutiny as the appropriate standard of review for any governmental policies relying on racial classifications, including those intended to benefit rather than oppress historically disadvantaged groups. (25)
Although Justice Powell's opinion for the Court ultimately found the state's interest in educational diversity to be sufficiently compelling to justify a limited use of racial classifications by an institution of higher learning in its admissions policies, (26) the decision laid the foundation for subsequent opinions, such as City of Richmond v. J.A. Croson Co. (27) and Adarand Constructors, Inc. v. Pena, (28) that have cast serious doubt on the constitutionality of any governmental program that relies on racial classifications. (29) In particular, the Court has indicated its disapproval of government schemes that treat otherwise similarly situated individuals differently solely because of their race. (30) As Professor Jed Rubenfeld has observed, the Croson and Adarand opinions announced a doctrine of "classificationism," under which "[t]he [racial] classification itself is the constitutionally suspect feature of the law, the feature that triggers heightened scrutiny," regardless of any allegedly benign legislative motive. (31) The Court's rigid "classificationism" in its post-Bakke opinions has led some lower federal courts to question the continued precedential vitality of Justice Powell's opinion in Bakke, concluding that even in the context of higher education diversity is not a sufficiently compelling interest to overcome the general suspicion of racial classifications. (32)
The increased judicial suspicion of racial classifications has recently filtered down to the level of public elementary and secondary schools, with courts now reconsidering the once-settled notion that a unitary school district may voluntarily use racial classifications to pursue the related goals of increasing educational diversity and reducing de facto segregation within the district's schools. (33) In reviewing these policies, courts are faced with two seemingly contradictory constitutional imperatives: on the one hand, the Supreme Court has approved of racial classifications as a tool to remedy de jure segregation; on the other hand, the Court has grown increasingly suspicious of any governmental use of racial classifications. (34)
This Note attempts to provide an answer to this dilemma and explain what steps unitary public school districts may or may not take to increase diversity and reduce de facto segregation. (35) It argues that the Court's recent skepticism toward racial classifications means that classifications may play only a narrow role in student assignment plans. Nevertheless, race-conscious race-neutral student assignment plans -- that is, facially colorblind programs enacted with the intention of increasing racial diversity -- can be both a constitutional and effective method of integrating public schools.
Part I analyzes "selective" public schools where admission is competitive and determined by merit and argues that the vast majority of racial classifications in these schools' admissions programs is unconstitutional. Because selective schools, with their competitive admissions processes, are more similar to the higher education context discussed in Bakke, many courts have concluded that a selective school may only use race as a "plus" in admissions decisions (36) in the manner permitted by Justice Powell's Bakke opinion. (37) In "nonselective" schools, however, where merit is not a factor in admission, some courts have concluded that schools have the authority to use race in a less nuanced fashion. (38) Because courts have tended to treat selective and nonselective schools differently, this Note analyzes nonselective schools separately, in Part II. Among nonselective schools themselves, courts have treated differently those schools offering unique educational benefits, such as magnet schools, and those offering ostensibly equal, or "fungible," educations. (39) Consequently, Part II addresses each type of school separately, concluding that school districts may almost never rely on racial classifications in the magnet school context, but officials may rely on racial classifications in assigning students to fungible schools when done to stem residential white flight. Part III then explains that despite the substantial constitutional restrictions on school districts' ability to use racial classifications, districts are permitted to use race-neutral policies to increase diversity. It then explores a number of these race-conscious, race-neutral policies that may be both practical and effective in increasing integration in selective and nonselective...
