The US Supreme Court handed down its second--and noticeably more controversial--opinion concerning schools last week, this time striking down the racially-based school districting plans implemented in Seattle and in Louisville. Writing the majority opinion for the court, Chief Justice Roberts declared,

“For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past discrimination, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis is to stop assigning students on a racial basis.”

Where the Court shot down the districting plans in those two cities because students' school assignments were determined almost exclusively by race, the five judge majority--pushed by moderate justice Anthony Kennedy--stopped short of completely eliminating the role of race in K-12 school policy. In his concurring opinion, Kennedy noted, “A district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered.”

In other words, last week's decision represents the natural extension of a pair affirmative action cases decided in 2003 in Michigan, where the use of race in undergraduate admissions was upheld in principle, so long as it is one of many factors considered in an admissions decision. In the K-12 arena, Justice Kennedy clarified that it would still be permissible for districts to take race into account when choosing sites for new schools, when drawing attendance zones based on neighborhood demographics, in allocating resources for special programs, in recruiting students and faculty members “in a targeted fashion,” and in tracking enrollment and performance by race.

Apart from the direct implications on Louisville and Seattle, which will have to come up with new school districting plans, the effects on America's large city school districts will be intriguing to watch over time. As Council of Great City Schools Director Michael Casserly noted, "I worry that a lot of school districts will simply give up [trying to desegregate schools on a racial basis] in the face of repeated challenges." In context, the decision is especially controversial because segregation in schools has actually risen over the past decade. As the Harvard Civil Rights Project's research concluded, more than 70% of African American students now attend schools with populations that are more than 50% minority, up from 62.9% in 1980. And fully 36.5% of black students in America go to schools with a minority enrollment higher than 90*--a 12.5% increase since 1986.

One likely outcome of the case is a switch to the use of family income as a more prominent factor in assigning students to schools. Approximately 40 districts use income as a factor in school districting currently, and the school board in Louisville is already considering adopting a similar policy in light of the Supreme Court decision.

In the end, only time will tell if the decision is one that, as Justice Breyer observed in his dissenting opinion, "the nation will come to regret." At minimum, it has brought race back to the forefront of our nation's consciousness yet again--without a clear benefit for our nation's children. Would instead that the Court had picked a case and issued a decision to erode at a different landmark case--the San Antonio v. Rodriguez decision (1973) which found that there is no fundamental right to an education in the US constitution, a decision which has resulted in immense disparaties in educational opportunity among and within the 50 states.