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Parents Involved in Community Schools v. Seattle School District No. 1:
An Overview with Reflections for Urban Schools
William E. Thro, M.A., J.D.
Charles J. Russo, J.D., Ed.D.
Abstract
In Parents Involved in Community Schools v. Seattle School District No. 1 (Parents
Involved, 2007), a highly contentious, and divided, Supreme Court invalidated race-conscious
admissions plans in two urban school systems, Seattle, Washington, and Louisville, Kentucky on
the basis that they were insufficiently narrowly tailored to accomplish a compelling
governmental interest. As such, Parents Involved was the latest chapter in the Court‟s almost
forty-year history of reaching mixed results in such far-reaching areas involving race-conscious
remedies as admissions to higher education, employment in the general workforce and in
education, minority set aside programs, and voting rights. In light of the impact that Supreme
Court cases on race-conscious remedies have in education, particularly in urban settings, this
article is divided into two parts. The first section reviews the opinions of the Supreme Court‟s
Justices in Parents Involved because of its potentially far-reaching effect. The second part of the
article reflects on the meaning of Parents Involved while also helping to set the tone for much of
the rest to this special issue of Education and Urban Society. The article rounds out with a brief
conclusion.
Key words:
race conscious admissions plans, affirmative action
2
Introduction
In Parents Involved in Community Schools v. Seattle School District No. 1 (Parents
Involved, 2007), a highly contentious, and divided, Supreme Court invalidated race-conscious
admissions plans in two urban school systems, Seattle, Washington, and Louisville, Kentucky.
The Court struck both programs down on the ground that they were insufficiently narrowly
tailored to accomplish a compelling governmental interest. As such, Parents Involved was the
latest chapter in the Court‟s almost forty-year history of reaching mixed results in such far-
reaching areas involving race-conscious remedies as admissions to higher education (DeFunis v.
Odegaard,
1974; Regents of University of California v. Bakke,
1978; Grutter v. Bollinger, 2003;
Gratz v. Bollinger, 2003); employment in the general workforce (United Steelworkers of
America v. Weber, 1979; Local 28 of the Sheet Metal Workers' International Association v.
Equal Employment Opportunities Commission, 1986); United States v. Paradise, 1987; Johnson
v. Transportation Agency, Santa Clara County, California, 1987) and in education (Wygant v.
Jackson Board of Education, 1986a, b); minority set aside programs (Fullilove v. Klutznik, 1980;
Richmond v. J.A. Croson, Co., 1990a, b; Adarand Constructors, Inc. v. Pena, 1995); and voting
rights (United Jewish Organizations v. Carey, 1977; Shaw v. Reno, 1993; Miller v. Johnson,
1995; Bush v. Vera, 1996).
Based on the impact that the Supreme Court‟s rulings on race-conscious remedies have
played in education, particularly in K-12 schools in urban settings, this article is divided into two
parts. The first section reviews the opinions of the Supreme Court‟s Justices in Parents Involved
in some detail because of the case‟s potentially far-reaching effect. The second part of the article
reflects on the meaning of Parents Involved while also helping to serve as a backdrop for much
3
of the rest to this special issue of Education and Urban Society. The article rounds out with a
brief conclusion.
Parents Involved in Community Schools v. Seattle School Dist. No. 1
Parents Involved in Community Schools v. Seattle School District No. 1 involved two
separate cases on race conscious admissions plans, also commonly referred to as affirmative
action, in public school systems that were argued together at the Supreme Court. This section
reviews the judicial histories of the two cases before examining the opinions of the Justices in
Parents Involved.
McFarland ex rel. McFarland v. Jefferson County Public Schools
Litigation ensued in Louisville, Kentucky, the twenty-eighth largest school system in the
United States, home to 97,000 students (McFarland v. Jefferson County Public School,
(McFarland, 2004, p. 839), when dissatisfied parents challenged a district-wide, race-conscious
school choice plan. Earlier, officials implemented the plan even though the district had been
released from judicial supervision for school desegregation in 2000 (Hampton v. Jefferson
County Board of Education, 2000).
On appeal of an order upholding the plan (McFarland, 2004), the Sixth Circuit, in
McFarland ex rel. McFarland v. Jefferson County Public Schools (2005), affirmed its
constitutionality. In a brief, one paragraph opinion, the court agreed that the plan was acceptable
because the school board had a compelling interest in using racial guidelines and applied them in
a manner that was narrowly tailored to realize its goals. The court explained that since the plan
was narrowly tailored to achieve the compelling governmental interest of preserving the presence
4
of minority students in each school as a means of successfully implementing racial integration, it
passed constitutional muster.
Parents Involved in Community Schools v. Seattle School District No. 1
Parents Involved was a procedurally complex case from Seattle, Washington, a school
system which never been segregated by law even though it was involved in a 1982 Supreme
Court case on busing. In Washington v. Seattle School District No. 1 (1982) the Court invalidated
a law from Washington that was adopted by a statewide referendum that was designed to prevent
student assignments to remedy de facto segregation. The Court explained that the law was
unconstitutional because in allowing local school boards to make all assignments except those
for race-connected purposes, it violated the Equal Protection Clause, a topic that is discussed
below. Based on their stated goal of eliminating what they described as thirty years of racial
isolation in the city‟s public schools (Parents Involved, 2001, p. 1225), in 2000 educational
leaders in the 46,000 student school system developed an “open choice” plan to attempt to
redress inequities in student assignments (Walsh, 2007).
Parents in Seattle, Washington, sued their school board over the “open choice”
assignment plan, claiming that it violated the Equal Protection Clause and state laws by
unconstitutionally relying on race as the tiebreaker in assigning students to oversubscribed high
schools. In the initial round of litigation, a federal trial court granted the school board's motion
for summary judgment, finding that the use of race in the open choice policy tiebreaker did not
violate the equal protection clause because it was narrowly tailored to serve a compelling
governmental interest (Parents Involved, 2001).
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On appeal, the Ninth Circuit reversed in favor of the parents (Parents Involved, 2002a)
but withdrew its opinion when it agreed to a rehearing (Parents Involved, 2002b) while asking
the Supreme Court of Washington to review the case. The panel requested that the Supreme
Court of Washington consider whether the use of a racial tiebreaker in making high school
assignments violated a state law against discrimination, or granting preferential treatment to,
individuals or groups due to race, color, ethnicity, or national origin in the operation of public
schools.
The Supreme Court of Washington ruled that while racial diversity in education is a
compelling interest, since the board's use of race as a tiebreaker was not narrowly tailored to
further such an interest, it violated the state constitution (Parents Involved, 2003). The Ninth
Circuit then reversed and remanded in favor of the parents with instructions to enjoin the plan
(Parents Involved, 2004). The panel thought that the racial integration tiebreaker violated a state
law which prohibited the preferential use of race in public education. Subsequently, an en banc
panel of the Ninth Circuit, relying on the Supreme Court‟s rulings in Grutter and Gratz, cases
from the University of Michigan which, respectively, rejected race conscious admissions policies
in undergraduate programming while allowing its use in the Law School, contended that the plan
did not violate equal protection since its use of race was sufficiently narrowly tailored to achieve
the compelling state interest of avoiding racial isolation while increasing diversity (Parents
Involved, 2005). The court decided that the plan was constitutionally acceptable because it met
the requirements of Grutter and Gratz insofar as the school board engaged in a good-faith
consideration of race-neutral alternatives.
After agreeing to hear an appeal (Parents Involved, 2006) in Parents Involved In
Community Schools v. Seattle School District Number 1 (2007), a highly divided Supreme Court
6
struck down plans from Seattle and Louisville that classified students by race in making school
assignments.
Chief Justice Roberts announced the judgment of the Court and delivered its
opinion with respect to Parts I, II, III-A, and III-C, in which Justice Scalia, Kennedy, Thomas,
and Alito joined and which Justices Scalia, Thomas, and Alito joined as to Parts III-B and IV.
Justice Thomas concurred. Justice Kennedy concurred in part and concurred in the judgment.
Justice Stevens dissented. Justice Breyer‟s dissent was joined by Justices Stevens, Souter, and
Ginsburg.
Opinion of the Court
Stipulating that “[t]he way to stop discrimination on the basis of race is to stop
discriminating on the basis of race (p. 2768), Chief Justice Roberts, as a reflection of his
adopting a more active leadership role on the Supreme Court, wrote an opinion that is both the
Opinion of the Court, namely those portions joined by Justices Scalia, Kennedy, Thomas, and
Alito and a four Justice plurality that was joined by Justices Scalia, Thomas, and Alito, but not
Justice Kennedy. At the outset, the Court defined the issue as “whether a public school that had
not operated legally segregated schools or has been found to be unitary may choose to classify
students by race and rely upon that classification in making school assignments (p. 2746).” The
Court then reviewed the facts of the cases and declared that it had jurisdiction to resolve the
dispute.
At the heart of its analysis, the Supreme Court employed equal protection analysis in
applying strict scrutiny but did so in such a way that it represents a significant development in
many respects. Briefly stated, equal protection analysis recognizes that since all governmental
actions impact Americans, their constitutionality depends on the degree to which they interact
7
with protected rights. On the one hand, the general constitutional test for classifications is
whether they are rationally related to legitimate governmental purposes. To this end, there is a
strong, but rebuttable, presumption that laws enacted through the legislative process are
constitutional. In explaining this test, the Supreme Court determined that “. . . if a law neither
burdens a fundamental right nor targets a suspect class, we will uphold the legislative
classification so long as it bears a rational relation to some legitimate end (Romer v. Evans, 1996,
p. 632).”
On the other hand, when laws or the actions of governmental officials allegedly limit
fundamental constitutional rights, such as equal protection under the law or treat individuals
differently on the basis of constitutionally “suspect” factors such as race, the courts apply the
“strict scrutiny” test and are unlikely to uphold such classifications unless they are based on
compelling justification. Insofar as strict scrutiny analysis shifts the burden shifts to the
government to prove the existence of a compelling need for such classifications, they must be as
narrowly drawn as possible. Still, when courts apply the so-called strict scrutiny test,
governmental actions are almost always struck down.
Some classifications, such as illegitimacy and gender, although not at issue in Parents
Involved, belong to a third category that is subject to heightened scrutiny. In limited
circumstances, the Supreme Court has adopted an intermediate standard of review that is not as
difficult for the government to meet as the compelling interest test but which involves less
deference to legislation than the rational relations test. In these cases, courts reject classifications
unless they have “substantial relationships” to “important” governmental interests.
In its application of strict scrutiny, the Supreme Court initially held that correcting a
racial imbalance in elementary and secondary schools was not, without more, a compelling
8
governmental interest. The Court noted that “we have emphasized that the harm being remedied
by mandatory desegregation plans is the harm that is traceable to segregation,” and that “the
Constitution is not violated by racial imbalance in the schools, without more. Once Jefferson
County achieved unitary status, it had remedied the constitutional wrong that allowed race-based
assignments. Any continued use of race must be justified on some other basis” (Parents
Involved, at 2752). In doing so, the Court emphasized that a racial imbalance was of no
constitutional consequence.
As to its resolution of educational equality, it is worth noting that the courts have
typically utilized two competing “paradigms” of educational equality. The first such test, the
“Numerical Parity Paradigm” focuses on ensuring that racial and gender groups are adequately
represented. This paradigm concerns disparate impact and ensuring that traditionally excluded
groups such as racial minorities, women, and the poorer economic classes are adequately, if not
proportionally, represented. Implicit in this paradigm is the assumption that one group must be
advantaged, at least on a temporary basis, to atone for the previous sins against it. This paradigm
focuses on objective criteria such as number of participants and assumes, at least implicitly, that
all groups have an equal desire to pursue certain opportunities.
When taken to its logical conclusion, the Numerical Parity Paradigm results in numerical
or financial quotas. In the Numerical Parity Paradigm at its extreme, change is brought about by
forcing educational institutions to adopt rigid numerical quotas for each gender or race and then
finding persons of the appropriate gender or race to fill the quotas. Under this approach, persons
are valued not so much for their individuality as for their membership in a particular gender
group. Moreover, in the numerical parity paradigm, the emphasis is on the impact of a policy or
9
decision. The fact that no one made a conscious choice to discriminate is irrelevant. What
matters is that one group was disadvantaged more than another.
Second, other courts have utilized a second test, the “Non-Discrimination Paradigm,”
which focuses on ensuring that race or gender of individuals are never considerations in
educational decision-making and that students have the opportunity to attend a quality school.
Implicit in this paradigm is the assumption that individuals, regardless of race, should be treated
the same. This paradigm ensures that there is no overt or covert gender discrimination in either
participation opportunities or treatment. Rather than focusing on equality of numbers, the non-
discrimination paradigm considers equality of treatment. As such, the paradigm acknowledges
that individuals may place different values on given programs. Thus, this paradigm would
require that no students be treated differently or excluded simply because of race, gender, or
economic status.
Under the non-discrimination paradigm, change occurs by requiring educational
institutions to adopt affirmative steps to promote full acceptance of persons as individuals, not as
members of a group, and by encouraging all persons to maximize the use of their particular
talents and to pursue their specific interests in sports and other activities. Pursuant to this
approach, persons are treated as individuals, are accorded dignity and respect, and are permitted
to meet their personal objectives. In light of the Non-Discrimination Paradigm‟s emphasis on the
“marketplace” of desires and respect for individual differences, change is much slower than in
the quota driven numerical parity paradigm. Moreover, in the non-discrimination paradigm, the
emphasis is on conscious decisions to exclude or to treat differently. The fact that a neutral
policy may have the unintended consequence of affecting one group more than another is
considered irrelevant under this paradigm.
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The Supreme Court next found that obtaining the educational benefits of a diverse
student body is simply not a compelling interest in K-12 context. This part of the opinion stands
in strong contradistinction to the University of Michigan racial preference cases, Grutter and
Gratz, wherein, a mere four years earlier, the Justices decreed that obtaining the educational
benefits of a diverse student was a compelling governmental interest in the higher education
context. In refusing to apply a diversity rationale in the context of K-12 schooling, the Court
emphasized the unique nature of optional higher education. The Justices thus determined that the
disputed school board policies inappropriately treated race as the decisive factor rather than
merely as one factor among many. In fact, the Court chided local school officials for viewing
“race exclusively in white/nonwhite terms in Seattle and black/‟other‟ terms” (Parents Involved,
p. 2754).”
The Supreme Court reemphasize that if racial classifications are going to survive strict
scrutiny, then they must be effective in achieving a compelling governmental interest. The Court
noted that “the minimal impact of the districts‟ racial classifications on school enrollment casts
doubt on the necessity of using racial classifications (Parents Involved, p. 2760).” The Court
expanded this rationale in maintaining that “[c]lassifying and assigning schoolchildren according
to a binary conception of race is an extreme approach” that “requires more than such an
amorphous end to justify it (p. 2760).” By demanding that racial classifications actually achieve
the compelling objective, the Court made it more difficult for the government to pursue the use
of race in school admissions.
Finishing up its majority rationale, the Supreme Court strengthened the requirement that
the government consider race-neutral alternatives before utilizing racial classifications. At this
point, the Justices conceded that they deferred to the University of Michigan‟s assertions in
11
Grutter that race neutral alternatives would be ineffective. However, the Court refused to expand
this deference in K-12 public education, responding that local school officials “failed to show
that they considered methods other than explicit racial classifications to achieve their stated goals
(Parents United, p. p. 2761).”
In sum, the Supreme Court‟s rationale Parents Involved signals the majority‟s
reaffirmation of the principle that the Equal Protection Clause prevents the government from
treating people differently due to race. Of course, differing treatment is allowed if it is a narrowly
tailored means of remedying the present day effects of past intentional discrimination by the
government. Moreover, in the higher education context, differing treatment is allowed if it is a
narrowly tailored means of achieving the educational benefits of a diverse student body. In
refusing to allow racial preferences in order to achieve racial balances, the Court rejected racial
balancing in K-12 education as a compelling interest, limited the pursuit of diversity to higher
education, demanded that racial classifications actually work, and directed educational officials
to consider non-racial alternatives in student assignments. In this way, the Court made it more
difficult for governmental agencies to pursue racial balancing.
Chief Justice Roberts’ Four Justice Plurality
Chief Justice Roberts‟ plurality, that portion of the Court‟s opinion that was not the
judgment of the Court, had had the support of Justices Scalia, Thomas, and Alito, effectively
adopted the first Justice Harlan‟s dissenting opinion in Plessy v. Ferguson (1896). In Plessy,
using language that presaged Brown v. Board of Education (1954), Justice Harlan reasoned that
“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law (p. 559).”
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In his analysis, Chief Justice Roberts maintained that “accepting racial balancing as a
compelling state interest would justify the imposition of racial proportionality throughout
American society (Parents Involved, p. 2757).” Further, Roberts remarked that “[a]llowing racial
balancing as a compelling end in itself” would ensure “that race will always be relevant in
American life” and “would support indefinite use of racial classifications, employed first to
obtain the appropriate mixture of racial views and then to ensure that the [program] continues to
reflect that mixture (Parents Involved, p. 2758).” Roberts went on to declare that “[r]acial
balancing is not transformed from „patently unconstitutional‟ to a compelling state interest
simply by relabeling it „racial diversity‟ [or avoidance racial isolation or promotion of racial
integration] (Parents Involved, p. 2759).”
Next, the Roberts plurality insisted that Brown stands for the proposition that
“segregation deprived black children of equal educational opportunities…because government
classification and separation on grounds of race themselves denoted inferiority (Parents
Involved, p. 2767).” Roberts made it clear that if school boards are “to achieve a system of
determining admission to the public schools on a nonracial basis,” then boards must “stop
assigning students on a racial basis (Parents Involved, at 2768).” The Chief Justice thus viewed
non-discrimination as the constitutional command.
In conclusion, the Roberts plurality asserted that race has no role in governmental
decision-making except when it is used remedially as in United States v. Paradise (1987),
wherein the Court upheld the use of percent promotion requirement for state troopers in Alabama
under the equal protection clause since it was justified by the compelling governmental interest
in eradicating the past discriminatory exclusion of African Americans from such positions and
was narrowly tailored to serve its stated purposes. While the majority opinion effectively
13
prohibited the direct consideration of race, the Roberts plurality effectively forbade the indirect
consideration of race.
Justice Kennedy’s Concurrence
Justice Kennedy‟s concurrence focused on the difference between the indirect and direct
consideration of race (Parents Involved, 2007. p. 2788), analysis that was consistent with the
Supreme Court‟s rationales in Gratz and Grutter. Still, Justice Kennedy viewed the Roberts
plurality‟s endorsement of a color-blind constitution as “inconsistent in both its approach and its
implications with the history, meaning, and reach of the Equal Protection Clause (Parents
Involved, p. at 2788).” In particular, Kennedy would have permitted local school board officials
“to consider the racial makeup of schools and to adopt general policies to encourage a diverse
student body, one aspect of which is its racial composition” as long as officials avoided “treating
each student in different fashion solely on the basis of a systematic, individual typing by race
(Parents Involved, p. 2788).”
Justice Kennedy‟s opinion stands for the notion that school board officials can consider
race in building new schools, drawing attendance boundaries, allocating resources, and recruiting
students for special programs. He further ascertained that “[t]hese mechanisms are race
conscious but do not lead to different treatment based on a classification that tells each student he
or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be
found permissible (Parents Involved, p. 2788).”
While Justice Kennedy refused to accept a color-blind constitution, he found the dissent‟s
embrace of racial balancing to be “a misuse and mistaken interpretation of our precedents. This
leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict
14
with basic equal protection principles (Parents Involved, p. 2788).” In addition, he joined four
other Justices in forming the Opinion of the Court that adopted the Non-Discrimination
Paradigm while rejecting the Numerical Parity Paradigm.
Justice Thomas’ Concurrence
Unlike Justice Kennedy, Justice Thomas joined all aspects of the Roberts opinion
(Parents Involved, p. 2768). Nevertheless, he was compelled to write separately to address
Justice Breyer‟s dissent. In addition to allying fears that Seattle or Louisville would become
resegregated, Justice Thomas emphasized the constitutional equivalence between race-based
assignments designed to help racial minorities and race-based assignments designed to hinder
minorities, rejecting the dissent‟s argument that student assignment plans should be subjected to
strict scrutiny. He also set out a comprehensive explanation as to why he believes that the color-
blind interpretation of the Constitution is correct.
Dissenting Opinions
Justice Stevens’ Dissent
In a brief, but bitter, dissent Justice Stevens stated that he joined Justice Breyer‟s dissent
in full (Parents Involved, p, 2797). Even so, he wrote a separate opinion expressing his
contention that the current majority had turned its back on Brown, bitterly charging that The
Court has changed significantly over the past forty years. To this end, he decried that the Court
“was then more faithful to Brown and more respectful of our precedent than it is today. It is my
firm conviction that no Member of the Court that I joined in 1975 would have agreed with
today's decision (p. 2800).”
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Justice Breyer’s Dissent
Justice Breyer‟s lengthy dissent (Parents Involved, 2007, p. 2800), which was joined by
Justices Stevens, Souter, and Ginsburg, maintained that since the plans at issue were sufficiently
narrowly tailored, especially since they were developed by democratically elected school boards,
they should have been upheld. Not unlike Justice Stevens, Breyer feared that the outcome in
Parents Involved would lead to additional segregation in schools based on race.
Reflections
On the one hand, the Supreme Court declared that “[e]ducation, of course, is not among
the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis
for saying it is implicitly so protected (San Antonio Independent School District v. Rodriguez,
1973, p. 35)." Yet, at the same time, in Brown v. Board of Education (1954), the Court
acknowledged that “education is perhaps the most important function of state and local
governments (p. 493).” The Court added that “it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an education (p. 493).”
To the extent that “Americans regard the public schools as a most vital civic institution
for the preservation of a democratic system of government,” (Abington School District v.
Schempp, 1963, p. 230), every State Constitution has a provision mandating, at a minimum, that
the State provide a system of free public schools (Thro, 1998). Yet, despite the importance
placed on education in the Nation‟s fundamental charters, American public schools remain
inherently unequal and the worst schools inevitably fail. Indeed, “there are very few people who
have the temerity to stand up and say that the public school system is doing a good job of
educating its students. Virtually everyone who comments on education, be they defenders or
16
enemies of the establishment, agrees that the system is in dire need of reformation (Peyser, 1994,
p. 626).”
Insofar as the failure of the public schools is particularly clear in urban centers (Pixley,
1998), which continue to be more segregated than they were a generation ago (Frankenberg &
Orfield, 2007), African-American and Hispanic students are disproportionately affected whether
in regular or special education (Russo & Talbert-Johnson, 1997). “[T]the gap in educational
achievement between black and white students was so great that it threatened to defeat any other
attempts to narrow the economic differences separating blacks and whites (Murray, 1984, p.
105).” Data suggest that minority students‟ mastery of basic skills is less than half of that of their
white counterparts. The profound educational policy problem of our time is how to equalize
educational opportunities.
In Parents Involved, the Opinion of the Court, the four-Justice Roberts Plurality, and
concurring opinions do not directly address the problem of equalizing educational opportunities,
but the opinions have profound implications for how policy makers may respond to the problem.
The net effect of the opinions is to remove the opposition of achieving equal opportunities
through racial integration. As reflected in Brown v. Board of Education (1954), the Constitution
requires an end to de jure segregation. Further, while later cases mandate the elimination of the
lingering effects of segregation (Freeman v. Pitts, 1992), Parents Involved (pp. 2757-59) noted
that the Court has yet to mandate racial integration (Russo & Talbert-Johnson, 2004). Indeed, as
Justice Thomas acknowledged in his concurring opinion in Parents Involved, pursuing racial
integration for the sake of racial integration is forbidden:
Racial imbalance is the failure of a school district‟s individual schools to match or
approximate the demographic makeup of the student population at large. Racial
17
imbalance is not segregation. Although presently observed racial imbalance might
result from past de jure segregation, racial imbalance can also result from any
number of innocent private decisions, including voluntary housing choices.
Because racial imbalance is not inevitably linked to unconstitutional segregation,
it is not unconstitutional in and of itself (p. 2769).
If the problem of educational inequality is solved, it will be solved without utilizing race.
Given the prohibition on the use of race, policy-makers have two possible approaches.
First, educational inequality is caused by a wide variety of factors including administrative
mismanagement and the problems endemic to poverty, but the prohibition on race based student
assignments seems likely to result in renewed focus on school finance. As one scholar observed:
Urban schools generally face incredible, if not intractable, problems, as “dropout
rates hover well above 50 percent, truancy is the norm rather than the exception,
violence is common, students struggle for basic literacy . . . and the physical
condition of the schools is a disgrace.” Black males appear to be faring most
poorly under current conditions (Barnes, 1997, p. 2376, quoting Cookson, Jr.,
1994, p. 2).
Despite receiving funds from both federal and state sources, all local school districts, except
those in Hawaii, raise much of the money necessary for operations through a percentage tax, with
the rate set by the local residents, on the value of the real property in the district. Due to differences
in rates and in the value of real property, this system results in vast disparities. As a result, some
school systems have trouble providing even the basics while others are able to offer educational
luxuries.
Sadly, the disparities in local funding have long been so great that “[i]f a state without a
18
previous history of public financing were now proposing the initiation of a plan, it is highly unlikely
that the system of dual responsibility [both local and state] would be adopted (Johnson, 1979, p.
327).” While State legislatures and governors have adopted various mechanisms to correct this
financial inequality, the disparities remain.
Given the obvious conflict between the constitutional value of free public education for al
and the funding disparities created by the States‟ school finance systems, it is not surprising that
the courts have been asked to intervene and vindicate the constitutional value of free public
education for all by declaring that the current system of financing the schools is unconstitutional.
Indeed, over the last four decades,
the high court of virtually every State has wrestled with the
question of whether the State‟s school financing system is constitutional. However, since a
judicial solution to the problem has proved as elusive as a legislative or executive solution,
America‟s other constitutional values actually undermine the judiciary‟s efforts to solve the
problem (Thro, 2005, p. 2005).
Second, a prohibition on the use of race may well force school board officials to focus on
the socio-economic status of students and their families. Although a socio-economic preference
may advantage certain racial and ethnic groups disproportionately, such disproportionate impact
is not constitutionally problematic. By shifting the emphasis from race to socio-economic status,
the school district is recognizing that race is frequently used as a “proxy for other characteristics that
institutions value but that do not raise similar constitutional concerns (Hopwood v. Texas, 1996, p.
946).” At least on its face, such an approach eliminates race as a relevant factor. Thus, it should be
possible for school board officials to arrange students assignments so that the poor, the middle class,
and the rich are represented in each school. Such intermixing of socio-economic classes likely will
result in the most of the same benefits generally attributed to racial integration without encountering
19
constitutional difficulties. More significantly, socio-economic integration may begin to eliminate
the achievement gaps that plague urban schools.
Conclusion
Parents Involved represents a significant turning point for urban schools. While the
problems of educational inequality remain, the Supreme Court has sent the clear message that,
except in those few school systems that have failed to achieve unitary status, student assignments
may not be based on race. In other words, then other tools, such as assignments based on socio-
economic status or increased funding for certain programs, will have to replace the current practice
of seeking equality through racial balance. In moving toward, if not actually adopting, Justice
Harlan‟s vision of a colorblind Constitution, the Court is not signaling an abandonment of the core
values of Brown. Rather, the Court is defining Brown’s core value as a principle of non-
discrimination and is suggesting that there needs to a fundamental change in our approach to the
elimination of educational inequality.
William E. Thro, M.A., J.D., a former State Solicitor General of Virginia, currently is University
Counsel & Assistant Professor of Government, Christopher Newport University, Newport News,
Virginia. "The views expressed in this article are entirely those of the Authors and do not
necessarily reflect the views of the Attorney General of Virginia.
Charles J. Russo, J.D., Ed.D., is Panzer Chair in Education and Adjunct Professor of Law at the
University of Dayton in Dayton, Ohio. He is also editor of Education & Urban Society.
20
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Brown v. Board of Education, 347 U.S. 483 (1954).
Bush v. Vera, 517 U.S. 952 (1996).
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