Case re-examines affirmative action

WASHINGTON – The Supreme Court agreed Monday to decide whether skin color can be considered in assigning children to public schools, reopening the issue of affirmative action.

The announcement puts a contentious social topic on the national landscape in an election year, and tests the conservatism of President Bush’s two new justices.

The outcome could mark a new chapter for a court that famously banned racial segregation in public schools in Brown v. Board of Education in 1954.

Since then, race questions have been hugely divisive, both for the court and the public.

In 2003, more than 5,000 people demonstrated outside as the justices considered whether public universities could select students based at least in part on race. Justice Sandra Day O’Connor broke a tie to allow it in a limited way.

The court’s new interest is in public schools, far more sweeping than universities. And O’Connor is gone, replaced by conservative Justice Samuel Alito.

The justices will hear appeals this fall from a Seattle parents group and a Kentucky mom, who argue that race factors improperly penalize white students.

Doug Kmiec, a Pepperdine University law professor and former Reagan administration lawyer, said the case will affect students everywhere. “This is not quite at the level of Brown v. Board, but it will be argued in the style of that case,” Kmiec said.

Justices will look at the modern-era classroom, no longer under court desegregation orders but in some places still using remnants of those policies.

The court’s announcement that it will take up the cases this fall provides the first sign of an aggressiveness by the court under new Chief Justice John Roberts. The court rejected a similar case in December when moderate O’Connor was still on the bench. The outcome will most likely turn on her successor, Alito.

Both Roberts, 51, and Alito, 56, worked as Justice Department lawyers during the Reagan administration to limit affirmative action.

Alito was asked during his Senate confirmation hearings in January about the 2003 case. Without stating his views on affirmative action, he said he taught a college seminar on civil liberties to a diverse class. “Having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class,” he said.

The court’s announcement followed six weeks of internal deliberations over whether to hear the appeals, an unusually long time.

“This is a very dramatic move. I expect it will create a big national discussion,” said Gary Orfield, who heads the Harvard University Civil Rights Project and supports affirmative action.

A ruling against the schools “would be pretty devastating to suburban communities, small towns that have successfully maintained desegregation for a couple of generations,” he said. “The same communities that were forced to desegregate would be forced to re-segregate.”

In one of the cases, an appeals court had upheld Seattle’s system, which lets students pick among high schools and then relies on tiebreakers, including race, to decide who gets into schools that have more applicants than openings. Seattle put the system on hold during the legal fight.