How Does Parents Involved in Community Schools Matter? Legal and Political Influence in Education Politics and Policy

Conclusion: The decision, interacting with other issues, has indeed affected school districts, both via the courts and via effects on politics and policy making. Four years later, although PICS has not had a sweeping national effect on which students attend which schools—making the situation not dissimilar to Brown’s initial effects—it has shaped the legal and political landscape in numerous school districts and has interacted with state and federal policy in ways that are still evolving.

On June 28, 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District #1 (PICS) that school districts not currently under court order for racial desegregation may not, under most circumstances, use race as a criterion for determining which school a particular student will attend. Depending on one’s legal and political perspective, PICS either negated or embodied the spirit of Brown v. Board of Education. Editorials in many major U.S. newspapers explored its legal and political meaning, even though whether the decision would have a large practical effect remained an open question. Four years later, although PICS has not had a sweeping national effect on which students attend which schools—making the situation not dissimilar to Brown’s initial effects—it has shaped the legal and political landscape in numerous school districts and has interacted with state and federal policy in ways that are still evolving.

In this article, we analyze patterns of response to PICS within and outside the judicial system in order to determine where and how the decision has mattered. We begin with a discussion of the PICS decision and a synopsis of research on the effects of judicial decisions. Based on existing research, the likely visible consequences of PICS fall into two general categories: effects via further litigation, and effects on local politics and policy making. A third, less visible, possibility is for PICS to have affected political actors’ understanding of the available options and the boundaries of acceptable debate, even in the absence of explicit changes to policy. An update on post-PICS developments in Seattle, Washington, and Louisville, Kentucky, follows, illustrating how legal and political dimensions of the response have intertwined. The third section discusses general post-PICS developments in the federal courts. The final section analyzes political and policy changes, including local school board responses to court decisions and voluntary policy changes, as well as shifts in federal policy.

THE DECISION AND ITS IMPLICATIONS

THE DECISION

Both PICS and the companion case from Louisville decided at the same time (Meredith v. Jefferson County Public Schools) originated with White parents’ challenges to their school districts’ student assignment policies. (The Jefferson County Public Schools includes the city of Louisville and its suburbs.) In both the Seattle and Jefferson County Public Schools, families could make choices among schools. When demand for places in a school exceeded the number of seats available, the school districts used a variety of “tiebreakers,” including whether an individual student’s enrollment would adversely affect racial balance in the school. For a small number of students, the racial tiebreaker became the factor that decided whether they could attend their first-choice school. The plaintiffs in PICS and Meredith claimed that their children had been denied enrollment in the schools of their choice simply because of their race and that using racial categories in this way violated the Fourteenth Amendment guarantee of equal protection.

The nine justices issued five separate opinions in PICS. The opinion of the Court striking down the Seattle and Jefferson County Public Schools (JCPS) policies, written by Chief Justice Roberts, declared that Seattle’s and Jefferson County’s racial “tiebreakers” had not been narrowly tailored to serve a compelling government interest and thus were unconstitutional. Justice Kennedy agreed that Seattle’s and Jefferson County’s policies were unconstitutional but did not join in other parts of the chief justice’s opinion, which both rejected the idea of “racial balance” (and diversity in general) as a legitimate goal of student assignment policies and required that all student assignment policies be race-neutral. These portions of the chief justice’s opinion thus did not represent the Court’s majority opinion. Justice Thomas wrote a concurring opinion that went further than what Roberts had written, identifying all government uses of racial classifications as equally contrary to the Constitution. Justice Breyer wrote a dissenting opinion, joined by Justices Ginsburg, Souter, and Stevens, arguing that government has a compelling interest in diverse school enrollments and that Seattle’s and JCPS’s policies had indeed been narrowly tailored to achieve it. Justice Stevens wrote a separate dissent charging that Chief Justice Roberts and his fellow conservatives were misreading Brown v. Board of Education. Finally, Justice Kennedy wrote a concurrence in which he endorsed the idea that government has a compelling interest in maintaining diversity and preventing racial isolation. Significantly for the post-PICS development of public policy, Kennedy left open the possibility that some uses of race as a criterion for assigning students to schools would be able to win his support. For Kennedy, diversity policies that do not hinge on individual students’ race, such as school attendance zones that pair predominantly White and Black neighborhoods, are clearly constitutional. Diversity policies that do take individual students’ race into consideration could also pass muster, so long as the district had previously attempted race-neutral measures that had not worked or if race was one of many factors considered. Thus, after PICS, it still seemed possible that some race-conscious policies might be upheld by a 5-4 vote in the Court.

Because of the diversity of opinion on the Court, the bottom line of PICS was unusually blurry. As Armor and O’Neill (2010) pointed out, five justices agreed that diversity is a compelling interest in public K–12 education, but five justices also agreed that Seattle’s and Jefferson County’s policies were not narrowly tailored to achieve it. Justice Kennedy was the single member of both blocs. In the months following the decision, lawyers and experts on desegregation counseled school districts on whether their policies or proposed changes to them might meet Kennedy’s criteria (NAACP Legal Defense Fund & Civil Rights Project, 2008; National School Boards Association and College Board, 2007). The U.S. Department of Education’s Office of Civil Rights sent a letter to school districts in August 2008 advising districts to use only race-neutral methods in student assignment plans, a characterization that civil rights groups believed to be unnecessarily restrictive (Walsh, 2008).

Immediately after the Supreme Court issued the PICS ruling, the most common prediction of the decision’s substantive effects was that they would be negligible, because narrowing achievement gaps had replaced desegregating schools as the main goal of policy makers at all levels of the system (see Frankenberg & Le, 2008). PICS culminated a decades-long shift in federal school desegregation rulings. In earlier decisions, beginning with Milliken v. Bradley (1974) and continuing through Missouri v. Jenkins (1995), the Supreme Court had reduced the extent of what it ordered school districts to do in pursuit of desegregation and had made it easier for districts to end court supervision. Although Jefferson County had previously been under order, neither Seattle’s nor Jefferson County’s public schools were under court order to desegregate at the time of the decision.

PICS went further than the earlier decisions that limited integration remedies, because it identified assignment using an individual student’s race as itself a violation of the principle of nondiscrimination. Some scholars noted the potential of PICS to affect educational politics and policy in ways other than leading directly to changes in school demographics. Fischbach, Rhee, and Cacace (2008) argued that PICS produces a “pivot point” in equal protection jurisprudence, because the decision makes the legality of a court-supervised district’s student assignment policy subject to change overnight if the court declares the district unitary. With PICS, the Supreme Court shifted from reducing the scope of what it ordered districts to do in order to maintain integrated schools, to ordering districts to stop practices that had been intended to reduce racial discrimination but that the Court now identified as themselves racially discriminatory. This legal shift seemed likely to have feedback effects on politics and policies. James Ryan (2007) wrote in his early analysis of PICS that the Supreme Court had not previously “actively opposed voluntary school integration or sought to interfere with school officials—as opposed to courts—trying to reach that end. It does here, and that matters” (p. 154). As Justice Breyer himself noted in dissent,

Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of “race-conscious” criteria from among their available options. . . I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America’s efforts to create, out of its diversity, one Nation. (Parents Involved, 2007, 2834)

RESEARCH ON THE EFFECTS OF JUDICIAL DECISIONS

However dramatic they appear when they are announced, U.S. Supreme Court decisions often have effects that are delayed, inconsistent, or both (Birkby, 1966; Blaustein & Ferguson, 1957; Horowitz, 1977; Rosenberg, 1991; Scheingold, 1974). One of the most influential analyses, that of Stuart Scheingold, casts doubt on the overly simplistic “myth of rights” (1974, p. 5) in American politics. In general, Scheingold said, “Direct deployment of legal rights in the implementation of public policy will not work very well, given any significant opposition” (p. 117). Some kinds of court decisions are more vulnerable to political delay and compromise than others. Speaking specifically of delay and obstruction in the response to Brown, Scheingold noted that when courts declare legal rights that run counter to existing power relationships in society, these rights will be politically contested rather than “redeemed on demand” (p. 86).

Since Scheingold’s book, much research has focused on the connections among court decisions, other policy enactments, and political pressure for change. Gerald Rosenberg’s book, The Hollow Hope: Can Courts Bring About Social Change? is an especially important landmark in this debate because of its challenge to the assumption that Brown v. Board of Education produced desegregation. According to Rosenberg, Brown had little effect on actual levels of school integration until the Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965 connected the desegregation mandate to federal funding and enforcement (see also Orfield, 1969). In contrast to Rosenberg’s analysis, Michael McCann’s book, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (1994), considers the effects of court decisions more broadly and concluded that although “courts generally have lacked the will and capacity to correct discriminatory wage practices,” legal norms nonetheless “significantly shaped the terrain of struggle over wage equity,” and “litigation and other legal tactics provided movement activists an important resource for advancing their cause” (p. 4). McCann’s work has influenced that of a large number of scholars in legal studies, focusing on the general relationship between “law-on-the-books” and “law in action” (Albiston, 2005; Barnes & Burke, 2006; Grattet & Jenness, 2005). Thinking broadly about Brown along these lines, the decision’s effects should be understood not only in terms of increases in the proportion of African American students who attended integrated schools during the period when federal courts enforced desegregation rulings, but also in terms of intangible effects (Klarman, 2004; Patterson, 2001). From this standpoint, Brown inspired African Americans to challenge racial segregation in public settings other than schools, and their success in turn led other marginalized groups like gays and lesbians, and people with disabilities, to pursue equality through the courts.

Recently, scholars of public interest litigation like Sabel and Simon (2004) have noted that the role of courts is shifting from “command and control” to an “experimentalist” approach in which courts participate less directly. Rather than settling issues by decree, as they famously did in supervising desegregation of many school districts, Sabel and Simon see courts as attempting to “create a process in which the stakeholders collaboratively derive standards, procedures for revising them, and mechanisms of accountability for those subject to them” (1089). Superfine (2010) made a similar claim about the courts’ role in education policy, but also noted that PICS is a “marked contrast” to other recent decisions in which the Supreme Court reduced judicial oversight of school districts because the PICS Court did not defer to local control of education policy, instead throwing out policies adopted by local boards of education.

PICS seems highly likely to have significant political effects. In much of the country, the decision is consistent with a strong trend in public opinion. Many Americans believe in the principles of diversity and integration, yet are uncomfortable with explicitly race-based policies like affirmative action. Whites in particular believe that racial discrimination affects people’s life chances far less than it used to (McArdle, 2008; Pride, 2002; Schuman, Steeh, Bobo, & Krysan, 1997). Given these trends in public opinion, school districts often make equity a lower priority than satisfying other demands made by vocal parents (Wells & Serna, 1996). Going back to Scheingold’s conclusion that court decisions that run counter to existing power relationships are unlikely to have immediate impact, it seems reasonable to expect that, unlike Brown, PICS would have led quickly to the dismantling of diversity policies because it was so strongly consistent with other political trends. It is quite easy to imagine PICS emboldening opponents of race-conscious policies, inspiring them to challenge policies that might be inconsistent with the decision, or even to adopt PICS as a sort of symbol for pushing back against policies that are arguably not affected by the decision (for example, race-conscious assignment policies in school districts that remain under court supervision). However, in some jurisdictions, local politics may run counter to the general, national trend toward deemphasizing race and diversity. Faced with PICS, supporters of race-conscious student assignment policies may take on a kind of passive-resistance strategy; for example, a school board might decide not to pursue an end to court-supervised integration so that it can continue with policies that might not be consistent with PICS if the legal order was lifted.

Our study of the effects of PICS contributes to a body of prior research on how judicial decisions interact with local political preferences to shape education policy. Reed (2001) found that despite state legislatures’ political compromises on education finance remedies, states in which plaintiffs won funding-equity suits moved more toward actual equality of funding than did states in which plaintiffs lost such suits. Welner (2001) included legal decisions as one of the political and demographic factors that can shift the boundaries of debate for a particular issue. Welner labeled these boundaries the “zone of mediation” (p. 95). In his analysis of efforts to eliminate tracking in schools, legal orders to detrack interact with political pressure. When a court order does not produce as much detracking as plaintiffs had hoped, the conclusion to be drawn is not that the court action failed, but rather that it simply “failed to accomplish all that it theoretically could have done were it not for the many other factors pushing the zone in the opposite direction” (p. 221). Paris (2010) analyzed “legal translation”—the “processes through which reformers translate their values and goals into plausible legal claims and arguments” in state-level efforts to make education finance more equal. Paris found that “legal translation can therefore shape the evolution of legal doctrine” and that “in turn, legal doctrine often sets the agenda of contention in politics and defines the language of public debate” (p. 3).

Welner, Reed, and Paris all analyzed efforts to use the courts to increase access to resources and opportunity for low-income students and students of color. PICS pushes in a different direction, asserting the rights of White students not to have their options narrowed by diversity-promoting policies for school assignment. Analysis of legal and political responses to PICS thus permits us to determine whether a Supreme Court decision that challenges an approach to educational equity has political and policy effects similar to the effects of the decisions analyzed by Welner, Reed, and Paris. If there are general processes by which legal decisions define policy alternatives as acceptable or not acceptable, and political participants can seize on legal decisions as ideas and slogans around which to mobilize, how do these processes work? In particular, how do people mobilize in favor of and against locally chosen policies that attempt to produce more diversity in school enrollments? How do legal decisions enable or constrain these efforts?

ANALYTIC FRAMEWORK

Considering prior research on the effects of court decisions suggests several possible variations in the response to PICS. The decision’s effects are likely to vary across local political and legal contexts. Response may occur either in the courts or in the legislative and executive branches of government—for PICS, mainly at the local and federal levels.

RESPONSE IN THE FEDERAL COURTS

Following PICS, race-conscious student assignment policies appeared more vulnerable to legal challenge than they previously had. One obvious type of potential legal response to the decision was thus new lawsuits challenging race-conscious policies in school districts that, like Seattle and JCPS, were not currently subject to a court order to desegregate. Even though PICS technically does not apply to districts under desegregation order or covered by a settlement, critics of existing orders and settlements could nonetheless have been emboldened by PICS to go back to the judge and either modify the terms of the settlement or order or seek a declaration of unitary status.¹ Finally, the decision’s recognition of a compelling interest in integrated schools could be used as the basis for a challenge to racial discrimination such as the recent Fischer higher education case in Texas (Fisher v. University of Texas, 2011).

RESPONSE IN LOCAL POLITICS AND POLICY MAKING

Most obviously, where lower courts interpreted PICS to require that school districts discontinue race-conscious student assignment policies, their boards of education needed to revisit the issue and craft policies that would not run afoul of the PICS precedent. Even where decisions subsequent to PICS did not require changes in board policies, it seems quite likely that the decision could nonetheless have motivated changes. Risk-averse local authorities might try to prevent future legal action by replacing the kinds of policies struck down in PICS with neighborhood-based school assignment policies, multifactor policies of the sort that Justice Kennedy’s concurrence suggested might be acceptable, or policies that balance school demographics on the basis of socioeconomic status rather than race. In addition, external factors, such as budget austerity and changes in the numbers or demographics of students enrolled, could become potential political rationales for policy makers’ rollback of race-conscious policies. It is also possible that part of the chilling effect of PICS could extend to the local electorate, such as in Wake County, North Carolina, where in fall 2009, voters elected a school board majority that vowed to (and did) end the district’s voluntary socioeconomic integration policy. In fall 2011, the voters reversed course, and those opposed to the diversity policy are now in the minority. It remains to be seen whether the newly elected board will be able to stop or modify the implementation of the new choice-based plan that does not have diversity as it goal.

NONRESPONSE

Three kinds of situations could conceivably lead to PICS not having had visible effects. First, and most obviously, the decision was not relevant in the thousands of school districts that did not have race-conscious student assignment policies in 2007 and after. Many U.S. school districts consist of only one school, or of one school each for elementary, middle, and high school grades, and thus do not need any sort of within-district student assignment policy. Some larger districts never had race-conscious policies or ended them after being declared unitary following desegregation, which releases school districts from court supervision of desegregation efforts. Many districts of all sizes are so racially homogeneous as to render “racial balance” and “desegregation” meaningless in terms of intradistrict student assignment (Holley-Walker, 2010; Ryan, 2007).² Others had already moved to pursuing socioeconomically based student assignments prior to PICS because of concern about lower courts’ skepticism about racial classification (Ma & Kurlaender, 2005). Resegregation, as a result of many of these decisions, was already rising prior to PICS.

Second, PICS ought not to have had a direct effect in the districts that were still operating under desegregation orders or settlements in 2007, given that the Court explicitly distinguished its holding to only those districts not covered by remedial desegregation orders or settlements.

A third situation in which PICS would not have changed policies is when districts had adopted race-conscious student assignment policies without a court order or had continued them after being declared unitary and simply decided to maintain these policies despite the decision. The decision was ambiguous enough that local leaders may have decided to take advantage of the ambiguity and continue with the predecision status quo. For example, in Boston, the race-conscious METCO interdistrict choice program continues after PICS (Crimaldi, 2007; “METCO, Now More Than Ever,” 2007).

Though not an explicit focus of this article, we posit that each type of local response (or nonresponse) might be influenced or supported by the involvement of outside legal groups such as the NAACP Legal Defense and Educational Fund, which has litigated school segregation cases for decades and advised school districts about the legality of their policies. Conversely, the Pacific Legal Foundation and the Center for Individual Rights are examples of groups that have brought a variety of cases challenging race-conscious government policies.

SEATTLE AND JEFFERSON COUNTY: LEGAL AND POLITICAL RESPONSE

The PICS decision remanded both the Seattle and JCPS cases to the relevant district courts to supervise the implementation of new student assignment plans. Post-PICS changes to student assignment policy in Seattle and Jefferson County exemplify the range of variation in possible outcomes in response to PICS and demonstrate how the legal constraints were differently interpreted in local school boards’ political response. Despite the popular image in the United States of constitutional law as something that ought not to be influenced by extralegal factors, the courts are unavoidably open to influences other than legal doctrine.

SEATTLE’S RAPID MOVE TO RACE NEUTRALITY

By the time of the Supreme Court decision, the Seattle school board had already suspended use of its race-conscious assignment policy, pending the outcome of the case. After the decision, the school board officially ended its policy. Seattle’s rapid, indeed preemptive, compliance with PICS suggests that the final legal decision pushed the district in a direction that already enjoyed local political support. In November 2009, the Seattle school board approved new boundaries that will phase in beginning with kindergarten, sixth grade, and ninth grade, when students are beginning elementary, middle, and high school. Students are guaranteed a seat in a school close to home, although not necessarily in the closest school. They also have the possibility of attending schools in other neighborhoods through school choice, although schools will only set aside 10% of places for out-of-neighborhood students (Blanchard, 2008; Shaw, 2009).

Seattle’s experience also shows how resource constraints and families’ expectations about choice can complicate even a straightforward change in student assignment policy. The pre-PICS school choice policy had affected the resources available to the city’s high schools because funds had followed students to their chosen schools. Schools that were under-chosen lost funds, which led them to reduce programs and become even less attractive (Shaw, 2009). The new neighborhood school policy includes an initiative to improve schools that were in this situation (Blanchard, 2008). Despite this effort, the local press quoted some city residents who questioned whether the city would really be able to ensure high-quality education at all schools, and suggested that it should have equalized resources before shifting to neighborhood schools. One parent said, “I think they [the schools] should all be equal if we’re going to be told, or restricted, as to where we can send our kids” (Shaw). Ironically, 30 years after parents in some Northern cities undergoing desegregation asserted that busing deprived them of their right to enroll their children in neighborhood schools, some parents now see neighborhood schools as a restriction on liberty.

 JEFFERSON COUNTY’S PURSUIT OF DIVERSITY WITHIN THE PICS CONSTRAINTS

JCPS’s post-PICS response has been strikingly different from Seattle’s. The differences may themselves be examples of how court decisions affect local politics. According to JCPS’s then director of student assignment, Pat Todd, the school district had been “transformed by the power of federal intervention. We went kicking and screaming [because of the initial 1970s desegregation order], but we saw the benefits of diversity and continued to go” (P. Todd, conference remarks, 2009). Unlike Seattle, JCPS has retained diversity as a goal of its student assignment policy. After the Supreme Court decision, the district court permitted the JCPS to continue using its existing student assignment plan while it considered alternatives. JCPS’s consideration of a new student assignment plan began with adoption of six guiding principles. In 2007–2008, it consulted with several civil rights groups, engaged in extensive data analysis projections, and held community forums to educate the public prior to adopting a new plan in May 2008 (The Integration Report, 2008a).

The JCPS’s redesigned policy divides the district into six racially and socioeconomically diverse clusters of elementary schools. The district also divides its residential areas into Geography Area A and Geography Area B, according to whether the majority of students residing there are above or below the district’s average median household income, average educational attainment, and average number of minority students in the public schools (Kahlenberg, 2009). Families indicate between four and six choices of schools, and the district makes the final assignment. The aim was to have students from disadvantaged neighborhoods (e.g., “A” areas) constitute between 15% and 50% of every nonspecialized school. The plan went into effect in the 2009–2010 school year for entering first graders, though the board spent roughly $800,000 in transportation costs during that year to keep the 3,400 elementary students who would have had to change schools under the new plan in their current schools. Changes for middle school student assignment were implemented for the 2011–2012 school year. The JCPS also won a federal grant to support the parental assistance and improved data system associated with the implementation of the new assignment plan.

Thus far, JCPS’s policies have survived repeated legal challenges by Teddy Gordon, the attorney who represented the Meredith plaintiffs. Gordon claimed to have believed initially that busing was right for JCPS, but to have become convinced that “race-based student assigning had become detrimental to black students” (Laidman, 2009, p. 54).³ In the summer of 2009, Gordon filed a suit on behalf of parents who claimed that the new policy still used race in an unconstitutional way, but this suit did not affect implementation of the plan. The district court judge refused to order an injunction to stop the new plan and alter the plaintiffs’ assigned schools. In particular, the judge said the plaintiffs had failed to prove that the plan relied too heavily on race or was unconstitutional. In October 2009, Gordon dropped the lawsuit because two plaintiffs were granted transfers that they accepted, and the third decided to home school. However, in summer 2010, Gordon filed a case in state court, alleging that the new multifactor plan violated Kentucky’s law allowing students in merged districts to attend the school closest to their home. In August, the court dismissed the lawsuit (Kenning, 2010), but the circuit court reversed the lower court on appeal. Argument before the Kentucky Supreme Court is set for April 2012.

In addition to drawing Gordon’s legal challenges, the Jefferson County plan has posed logistical and political challenges despite continued support by the school board and community for the goals of the plan (Orfield & Frankenberg, 2011). Transportation issues have arisen, and transfer requests are rising. In spring 2010, the Louisville branch of the NAACP released a white paper supporting the plan but criticizing its implementation (NAACP Louisville, Kentucky Branch, 2010). The situation remains unsettled. After some challenges to the plan during the fall 2010 election campaign, the district has retained consultants to recommend ways of improving transportation and possibly revising the method of integrating students; in January 2012, the board adopted some changes and continues to study other proposed alterations to the student assignment plan. Likewise, the state legislature considered a bill that would require JCPS to return to neighborhood schools, but the bill did not pass before the legislative session ended in 2011, nor did its sponsor, who was the Republican candidate for governor in the 2011 election, win. Finally, all three incumbent board members do not plan to run for reelection in fall 2012, and the plaintiff in the state court case has filed to run for one seat.

Developments in Seattle and JCPS since 2007 show how court decisions interact in complicated ways with local political alignments and logistical challenges. Seattle moved quickly to dismantle the policy that had been challenged in PICS, whereas policy makers in JCPS have tried to retain as much as they could of the spirit of the pre-Meredith student assignment policy. Neither approach has avoided the need to grapple with issues of resource allocation and the logistics of changing how students are assigned to schools. In both districts, student assignment remains politically and legally contested, largely because parents and activists recognize that access to educational opportunity is at stake when student assignment policy changes. Because of how the prior student assignment policies had affected resource allocation in Seattle, the broader consequences of student assignment policy were especially visible there. In other school districts less directly affected by the Supreme Court decision, legal and policy changes have been even more varied. In the next section of the article, we discuss post-PICS developments in the federal courts.

RESPONSE TO PICS IN THE FEDERAL COURTS

PICS has been invoked, or responded to directly, in multiple court cases across the country and in a variety of settings. Some cases continued litigation that predated the Supreme Court decision, whereas other cases explicitly responded to it. These cases, and the actors pursuing them, are helping to shape what Paris (2010) would call the “translation” of the PICS decision into practical consequences. We have limited our analysis to instances in which a judge or one of the parties to a case invoked PICS, and then divided the cases into districts that were, like Seattle and JCPS, not under order in 2007 and those that were. There are also examples of districts (not discussed here) that have had state legal challenges to race-conscious policies (such as Berkeley, California) or are currently under state court order to further integration (e.g., Hartford, Connecticut).

Our analysis begins with cases in districts that were, like Seattle and JCPS, not under order in 2007. Some districts responded Seattle-style, ending race-conscious policies with minimal legal wrangling. Others were more like JCPS, mounting a legal defense of diversity policies. We then consider the effects of PICS in districts that were subject to court orders. Even on a most superficial reading, it is intriguing that PICS has had any effects in these districts, where technically it did not apply. All these cases show the effects of PICS on the kinds of claims plaintiffs make and on the ways in which school districts assess their legal risk or defend their policies. These decisions by litigants in turn will shape legal doctrine as it evolves.

SCHOOL DISTRICTS NOT UNDER FEDERAL COURT SUPERVISION

Outside of Seattle and JCPS, PICS has led to new litigation developments, leading both to continuation of race-conscious student assignment policies and to elimination or alteration of such policies. Lynn, Massachusetts, is an example of a school district that has retained race-conscious enrollment policies despite a threatened legal challenge. During the 1970s, Lynn lost White population and overall enrollment in its public schools declined, while mandatory desegregation produced turmoil and violence in nearby Boston. To stave off White flight and avoid Boston’s fate, the city voluntarily adopted a racial diversity policy in addition to extensive efforts to improve programs across the schools and encourage better race relations (Cole, 2007). Under the “Lynn Plan,” all students have the right to attend their neighborhood school. They also may transfer to schools outside their neighborhoods, so long as the transfers contribute to racial balance, defined with respect to the district’s overall proportion of students of color. A group of White parents challenged the Lynn Plan in the Comfort v. Lynn School Committee case, but in 2003, the federal district court for Massachusetts found that the plan did not violate the rights of the plaintiffs’ children. The First Circuit Court of Appeals, en banc, upheld the plan in 2005, and the Supreme Court declined to grant certiorari in December 2005. Following PICS, the plaintiffs filed to reopen the case (Maguire, 2007), a motion that the judge denied on March 31, 2008, without passing judgment on whether the Lynn Plan is in compliance with PICS.

Other school districts have altered or eliminated race-conscious policies following threatened or actual legal action. Two examples are New York City and Beaumont, Texas. In New York, the Center for Individual Rights filed suit immediately after PICS on behalf of an Asian parent whose child was not admitted to the Specialized High School Institute (SHSI), a 16-month program that helps to prepare underrepresented minority and low-income students to take the exam for admission to selective high schools (Ng et al v. New York City Department of Education, 2007). The SHSI targeted Black and Latino students as the “underrepresented” minorities; for example, the city’s renowned Stuyvesant High School had had approximately 5% African American and Latino students at the time the lawsuit was filed even though these groups constituted more than 70% of the district’s enrollment. The district settled the case and ended any consideration of race in the SHSI. The proposed revisions to the policy, dropping consideration of students’ race/ethnicity but only permitting economically disadvantaged students to apply, were filed with the court and went into effect in July 2008; the lawsuit was dismissed in November 2008. In Beaumont, the school district altered a race-conscious provision in its student assignment plan in December 2007. At the time, if a student requested a transfer, the district’s decision on whether to grant it was based on whether the transfer would affect racial balance at the sending and receiving schools. The Pacific Legal Foundation (PLF), which filed amicus briefs supporting the petitioners in Parents Involved, sent the district a letter threatening a lawsuit if the plan was not altered (Guevara, 2007). The district eventually decided to eliminate race as a consideration in student transfers, and it now allows students who attend schools with at least 65% low-income students to transfer to a school with fewer than 65% low-income students (Guevara, 2008). Although PLF claimed to represent an unspecified parent group, the newspaper articles could not confirm the existence of such a group, suggesting that the PLF, an outside legal group, may have been able by itself to force alteration of a district’s race-conscious policies. It is also worth noting that all these districts continued to pursue diversity in school enrollments, albeit via socioeconomic-status-based rather than race-based policies. Later in this article, we will discuss political challenges to the socioeconomic diversity policy of Wake County, North Carolina, which has been a model for other districts.

Use of PICS in new litigation

After the Lower Merion, Pennsylvania, public schools enacted a 2009 reassignment plan to equalize the number of students at each of the district’s two newly renovated high schools, nine families sued the district, arguing that the plan used students’ race to determine school assignments. In a case that went to trial in spring 2010, a federal district court judge upheld the district’s use of race in redistricting an African American neighborhood because race was one of many factors the school board considered, such as ability to walk to school and transportation time. The district court specifically asked the parties to brief the question of the applicability of PICS to the case. Ultimately, the court concluded that because the district’s assignment change did not involve decisions relying on individual students’ race, PICS standard of review, strict scrutiny, did not apply. The case is currently on appeal, and earlier this year, the Department of Justice filed an amicus brief arguing that the case was subject to Parents Involved but that strict scrutiny did not apply, and the district’s actions were constitutional (Brief for the United States, 2011).⁴

PICS has also been used outside the context of student assignment cases, showing the ways in which a decision can be a catalyst for change even where it is not applicable in a technical sense. In a recent case in Cincinnati, Ohio, involving teacher assignments, a White teacher challenged the district’s “surplussing” policy, transferring teachers when student enrollment declines, arguing that the district’s action violated his constitutional rights because it was based on his race. The federal district court held, based on Chief Justice Roberts’s plurality opinion, that the Cincinnati Public Schools had no remedial interest in addressing racial isolation because the public schools were no longer under court order to integrate. Yet, the court also held that the surplussing of the teacher did not violate his rights under Title VII or state law. Given that school districts are often major local employers (see Orr, 1999), decisions like this or a similar one in Memphis could arguably have a larger effect on local politics than any changes to student assignment.

These cases show that the legal meaning of PICS remains contested. District residents and outside legal groups have challenged a variety of race-conscious policies based on PICS. In some instances—particularly after the immediate post-PICS period—districts chose to defend their policies. In other cases, districts decided to acquiesce to race neutrality, albeit still in the pursuit of diversity; many have chosen to use some measure of socioeconomic diversity. Districts currently under remedial court supervision have watched such developments carefully.

DISTRICTS UNDER COURT SUPERVISION AT THE TIME OF PICS

Technically, PICS does not apply to any districts under an existing remedial desegregation order or settlement. However, the decision has nonetheless affected the options open to the parties in such cases. These effects happened because Supreme Court decisions shape people’s general view of legal principles, beyond the specifics of particular decisions. As Fischbach et al. (2008) argued, PICS implies that a practice that was legally required before a district was declared unitary would instantly become legally forbidden after the unitary-status declaration. This duality produces ambiguity, which is likely to make some court-supervised districts err on the side of caution, even though PICS technically does not apply to them. Additionally, judges could interpret PICS as meaning that the end of desegregation orders should be hastened, and PICS could also inspire new parties to intervene and move for unitary status. Finally, some school districts have interpreted PICS as a reason not to pursue unitary status, because they believe that their desegregation orders permit them to continue race-conscious policies for which there is local support.

Moves away from race-conscious policies

One of the first cases after PICS was a motion to intervene by the Center for Individual Rights (CIR), a 35-year-old case involving Mark Twain Middle School, a specialized school in the New York City public schools with competitive admissions.⁵ Under the settlement, the school had a goal of 60% White students and 40% non-White students (adjusted from 70% White and 30% non-White in the original remedy from the 1970s). CIR moved to intervene on behalf of a South Asian girl whose parents claimed that she was not given space at Mark Twain because of quotas for White students that allowed White students with lower scores admission to the school. The original plaintiffs and the school district agreed that it was time to lift the court decree, which Judge Weinstein ordered at the end of February 2008. The Center for Individual Rights, although not granted intervenor status by the judge in this case, nonetheless precipitated the end of the long-running desegregation policy at this school.

The PICS decision appears to have sped up some districts’ efforts to be declared unitary, thus ending court supervision. One such district was Tucson, Arizona, which had been under a desegregation order since 1978. In 2008, the district court judge overseeing the case granted unitary status, even though the Tucson Unified School District had not yet demonstrated compliance with its court order (Fisher v. Tucson Unified School District, 2008). The Civil Rights Project’s Integration Report attributed this decision to PICS, saying, “The court’s role in pushing for unitary status without proceedings and in spite of its own negative findings suggests that this court somehow viewed the limits on voluntary desegregation outlined in the PICS decision as a general directive to lower courts to terminate desegregation plans without mandatory requirements” (Integration Report, 2008b). Reinforcing the idea that the unitary status declaration had been premature, the Ninth Circuit Court of Appeals reversed it in 2011 (Fisher v. Tucson Unified School District, 2011).
The situation was equally complex in Memphis (Shelby County), Tennessee, which had been under a desegregation order since 1963. The parties to the case moved jointly for unitary status. In 2009, the district court judge granted partial unitary status, but also ordered the district to make further efforts to desegregate its students and faculty so that all schools would be roughly reflective of the district’s racial composition by 2012. When the school district appealed to the Sixth Circuit Court of Appeals, the higher court overturned the agreement. The opinion, written by Judge Richard Allen Griffin, specifically cited PICS in criticizing the district court judge’s conclusion about faculty assignments: “Race-based hiring of the sort ordered by the district court violates the Constitution” (Robinson, 2009). Additionally, Judge Griffin said that any remaining vestiges of racial segregation in Shelby County are beyond the control of the school system.

PICS also influenced the declaration of unitary status in Chicago. During a 2006 hearing about the status of the desegregation case, parties agreed to delay a hearing about termination of the case until after the PICS decision. Magnet and selective schools were especially challenging. The district’s consent decree stipulated that its magnet schools could admit no more than 35% White students, but in fall 2008, 17 such schools were majority White and therefore out of compliance with the agreement (Lutton, 2008). In addition to expressing frustration with the complexity of the process, parents claimed that the magnet admissions process had become corrupt (Rossi, 2009). In fall 2009, a district court judge ended the consent decree that had been in place since 1980, declaring that vestiges of segregation that required the consent decree no longer existed (Konkol, 2009). The Chicago Public Schools replaced the cap on White enrollment with a new system of balancing students’ home neighborhoods and socioeconomic status. Showing the PICS influence, when Black aldermen charged that the new policy was simply a way of making more magnet school seats available for White students, the CEO of the city school system insisted that the new policy was “the best system we could come up with that was lawful” (Spielman, 2009). This reference suggests that policy makers regarded PICS as a constraint on their post-unitary-status options.

Districts seeking to stay under federal order

Perhaps one of the most common legal responses by districts under court order post-PICS is one of the most difficult to “see”—namely, districts that elect to remain under federal court order or desegregation settlement. One reason that districts might choose to stay under order is to retain diversity policies that district leaders view as crucial but that would be vulnerable if the district was not under order. One such response came in Jefferson Parish, Louisiana, where the school board’s attorney said that PICS “does not apply to us because we have not remedied a separate but unequal school system” (cited in Kirkham, 2007). Jefferson Parish’s case remains active as the district seeks to balance students to satisfy the district court. Before PICS, school districts that had attained unitary status equated it with a return to “local control.” Understandably, after PICS, districts with race-conscious policies may decide to stay under order so that they do not lose the ability to continue locally supported policies that consider race in student assignment.

* * *

Given the fractured nature of PICS, it is not surprising to see the varied legal responses to the decision. In surveying legal responses to PICS of districts that are not under order, we see two distinct patterns of response. Some districts quickly ended race-conscious policies even before actual litigation is filed. Yet others have maintained race-conscious policies, engaging in lengthy study and defense of the plans. At this point, we do not, and probably cannot, know how many districts (including those, like Jefferson Parish, still under court order) that are continuing race-conscious policies are doing so quietly, “under the radar.” Though this may look like a “nonresponse” to PICS, and strengthens the claim that PICS has not had much effect, we argue that this move may actually be a strategic response by districts that value race-conscious policies. This is particularly likely to be the case for districts under court order, seeing the ways in which PICS has been applied in unitary status hearings even though as a technical legal matter the plurality distinguished PICS from such remedial cases.

As of this writing, 4 years after PICS, the decision seems to have shaped legal doctrine in two main ways. First, by signaling skepticism about race-conscious policies to district courts and local officials, it has further hastened the end of some remedial court desegregation orders. In these instances, district courts interpreted PICS as yet another signal, in addition to 1990s decisions from the Supreme Court, that the time for court-ordered desegregation should draw to a close. This effect demonstrates how a decision can have a broader legal impact beyond the particular cases to which it directly applied. Second, except for the immediate aftermath of the decision, local school districts and/or outside groups have invoked PICS to test its bounds. The temporal dimension is interesting to consider when evaluating these responses as well. The two cases of dropping race-conscious policies occurred within 6 months of PICS. In the first months after the decision, districts confronted with a legal threat chose not to test the limits of the decision, but subsequent legal cases have begun to establish that not all race-conscious policies are unconstitutional and have, ultimately, begun to blunt the concern of civil rights advocates and educators that this decision would end all such policies. New guidance from the federal government, discussed at the end of this article, may make school districts more comfortable with race-conscious diversity policies, but as of this writing, the outcome remains uncertain.

LOCAL POLICY RESPONSE TO PICS

Research by Welner (2001) and others on how legal decisions affect policies has called attention to the ways in which decisions influence local political agendas. According to Welner’s “zone of mediation” concept, legal decisions favorable to plaintiffs do not automatically produce the outcomes that plaintiffs seek. Instead, decisions help set the boundaries within which local actors respond. The Jefferson County and Seattle responses discussed earlier in this article provide one example of how legal decisions interact with other factors to shape a policy response. Within the bounds of the same decision, different local situations, history, and political pressures led to quite different kinds of policy change. The PICS ruling made Jefferson County’s existing race-conscious policy impossible to retain, but district leaders and some community groups wanted to retain diversity as a goal in student assignment. When PICS played out in local politics, the result was a policy that has thus far withstood legal challenge even though it does not go as far toward strict race neutrality, as the Meredith plaintiffs’ attorney would have preferred. The Seattle Public Schools, in contrast, had already returned to race-neutral neighborhood schools by the time the Court ruled, showing the influence of a local political climate in which diversity was a lower priority.

The boundary-setting effects of PICS have extended to school districts without new or ongoing litigation about school desegregation and race-conscious policies. In these districts, PICS appears to have inspired some mobilization not only against race-conscious assignment policies but also against policies that attempted to produce diverse enrollments in other ways. These mobilizations show how legal decisions affect the policy alternatives under consideration and the range of potentially acceptable alternatives. Around the country, some districts that are not legally affected by PICS have chosen to make changes in their student assignment policies. In these districts, other issues like demographic change, enrollment growth or loss, family and community expectations, and pressure to reduce budgets have intersected with the delegitimation of racial categories. Where school districts have attempted to maintain various kinds of diversity in student assignments despite changing enrollments, the result has often been frequent reassignments of students, which frustrate parents. Since the financial crisis of 2008, fiscal austerity has been an especially important factor. When budgets are tight, “diversity” often appears to be an add-on rather than part of the schools’ core mission. Even a return to “neighborhood schools,” once the priority of parents resisting desegregation, can now arouse frustration in places where parents have become accustomed to choosing schools. By undercutting the legitimacy of race-conscious claims, PICS has shifted the boundaries of acceptable political discourse in some local communities. As the following sections of the article show, what a particular community has made of PICS depends on the extent to which people there are interested in pursuing or maintaining equity and on how student assignment policy interacts with other educational issues. Some districts have implemented “multifactor” diversity indices to guide student assignment; some have returned to neighborhood schools; still others are defining diversity in terms of socioeconomic status.

NEW MULTIFACTOR PLANS

A few school districts have crafted student assignment plans that attempt to follow Justice Kennedy’s guidelines for constitutionally permissible use of an individual student’s race as one factor taken into consideration in placing students. We term these “multifactor” plans because they use several factors (either individual student or neighborhood characteristics) for crafting attendance zones. Prior to PICS, Berkeley, California, was one of the first districts to use a race-conscious multifactor conceptualization of diversity to pursue integration (Chavez & Frankenberg, 2009). As described earlier, part of the local political response to PICS in JCPS was the adoption of a multifactor plan, which is race conscious at the neighborhood level. Many multifactor plans may thus be classified as race conscious, although not all multifactor plans include race.

Seminole County, Florida, is an example of a district that is using multifactor indices and attendance zones to maintain diversity in their schools, along the lines suggested by Kennedy’s concurrence. Prior to PICS, Seminole County used race in the drawing of attendance zones and approval of transfers but now uses attendance zones and clusters designed to reflect the overall diversity of the district, which it says are consistent with constitutional requirements. The policy adopts a broad definition of diversity, including socioeconomic status, gender, race, ethnicity, English for speakers of other languages, and disability (Holley-Walker, 2010). In essence, PICS can be viewed not only as a constraint on race-only policies but also as a catalyst for multifactor diversity efforts.

NEIGHBORHOOD SCHOOLS

After PICS, some school districts have established (or reestablished) neighborhood schools, sometimes with an attempt to draw lines in ways that will produce diversity. However, neighborhood-school policies have more often emphasized other factors such as proximity and capacity. In Nashville, the school board planned for the return to neighborhood schools after it was declared unitary in 2001. A community task force formed by the school board took on the job of rezoning the district and presenting a comprehensive student assignment plan to the board of education. The plan’s goals are to use existing building space more efficiently, allow students to attend schools closer to home, and provide additional options to students and families. The plan took effect for the 2009–2010 school year.

However, some community members were unhappy with the plan, contending that it would result in further resegregation of schools with few added resources for at-risk students. In August 2009, Jeffrey and Frances Spurlock filed suit against the district on behalf of their African American daughter, who had been assigned to attend a majority-African American middle school where she had not received schoolbooks. The suit in part alleged, “The truth about what is happening at John Early Middle School exposes the Nashville rezoning plan for the segregationist fraud that it is” (“Metro Schools Sued Over Rezoning Plan,” 2009). In September 2009, a federal judge ruled to allow the Spurlocks’ daughter to return to her former middle school and ordered a trial to consider the rezoning plan (“Federal Judge Rules Against Metro Schools,” 2009). The trial has been under way since fall 2010. Nashville’s legal case considering the wider legality of the district’s student assignment plan is currently pending after a trial in fall 2010. In December 2010, U.S. District Judge John Nixon asked plaintiffs to submit their proposed remedy should he rule in their favor. He further advised plaintiffs to seek assistance from the NAACP Legal Defense Fund to provide more adequate representation in challenging the rezoning plan, noting the substantial district and private counsel resources to defend the district (Garrison, 2011).

SOCIOECONOMIC PLANS

In briefs filed with the Supreme Court as it considered Seattle’s and JCPS’s plans, the federal government and a number of amici briefs argued that race-neutral alternatives, particularly those using socioeconomic status, would be as effective as race-conscious policies in integrating students (e.g., Brief for the United States, 2007). Yet, other briefs questioned this assertion (Brief of the American Civil Liberties Union, 2006; Brief of Walt Sherlin, 2006; see also Reardon, Yun, & Kurlaender, 2006). Even before PICS, districts like Cambridge, Massachusetts, and Wake County had switched from race-conscious policies to policies based on socioeconomic status, in part because of perceived legal hostility to race-based plans. (Recently, Wake County’s policy has been the subject of intense political conflict, which will be discussed later in this article.) Socioeconomic status has been incorporated into a number of multifactor plans discussed earlier, and districts have switched to economic-based plans or maintained such plans in the aftermath of PICS to pursue diversity. Beaumont, Texas, discussed earlier in this article, replaced its contested race-conscious transfer policy with one that considered socioeconomic balance instead. After the end of its consent decree, the Chicago Public Schools (CPS) had to redesign its admissions policies for magnet and selective schools, which had used students’ race to ensure that the schools did not disproportionately enroll higher percentages of White students. Their new plan, which divides students into four economic categories and attempts to balance enrollment among them, went into effect in the 2010–2011 school year with preferences for geographic proximity. According to the district’s lawyer, the district’s “hands were tied” by PICS, but they hoped using income would have a “racial dividend” (Spielman & Rossi, 2009). CPS has promised to review its policy in a year to determine if it is working (Yednak & Little, 2009).

Rock Hill, South Carolina, is an example of a district that has maintained its use of socioeconomic status to pursue diversity after PICS. Before PICS, the Rock Hill school board used school attendance zones as a way of keeping its schools diverse. According to S. S. Smith, Kedrowski, Ellis, and Longshaw (2008), Rock Hill’s shift to electing school board members from single-member districts had created a board with members from mainly Black neighborhoods and working-class White neighborhoods, who recognized a common interest in avoiding school resegregation. This shift in the electoral system is itself an example of a judicial influence on politics and policy, give that it was a response to the U.S. Voting Rights Act passed in the wake of a 1965 Supreme Court decision. Although the district has maintained relatively balanced schools post-PICS, there has been a “racial surge” at one elementary school.

Yet other districts are adopting socioeconomic diversity plans after PICS despite not having had a prior racial integration strategy. In December 2010, an increasingly diverse suburban Minneapolis school district, Eden Prairie, voted 4–3 to redraw boundary lines within the district to better take advantage of school capacity and to address the concentrations of economically disadvantaged students in some schools in the district (K. Smith, 2010). Despite parental opposition, the superintendent and school board endorsed the importance of closing socioeconomic gaps from 33% to a projected 2% among schools by rezoning more than 1,000 elementary school children.

S. S. Smith (2010) noted the “chilling effect” of PICS as one in which school officials thought they could not even consider race or racial projections in post-PICS reassignment discussions. Chicago policy makers seem to have had a similar perception of the situation. Similarly, in Eden Prairie, Minnesota, a parent group, Yes to Neighborhood Schools, formed in opposition to the boundary change “because of our belief that the school district’s plan to increase student achievement through boundary changes is a failed strategy and a false hope” (Wennerstrom, 2011). In December, the group retained a lawyer, John Munich, from a St. Louis firm who has challenged race-conscious policies in the past. Although the group ultimately did not file any lawsuit, Munich commented that the district’s documents about the boundary decision “raise serious concerns as to whether the District and Boundary Task Force simply used students’ socioeconomic status as a proxy for students’ race” (K. Smith, 2011). The school district maintains that any reference to racial composition in the planning stage was to comply with a state desegregation law. The district has proceeded with its implementation of the new plan. In fall 2011, however, the board members supporting the boundary redrawing were voted out of office, and the board bought out the contract of the superintendent who had led redistricting efforts.

OTHER ISSUES AFFECTING STUDENT ASSIGNMENT

Several other issues, including fiscal austerity in the “Great Recession” and parental desire for more predictable and stable school assignments, have influenced how the PICS response has played out in policy-making. Without explicitly citing PICS, some school boards are changing or attempting to change their student assignment policies, under pressure from taxpayers wanting to cut costs, parents seeking greater choice or stability in placements, or both. In these districts, the PICS plurality’s critique of diversity as a goal may embolden local critics of diversity to seize the opportunity to weaken or repeal diversity policies.

Financial issues

The severe recession that began with the 2008 financial crisis has strained school district budgets. Faced with financial pressure, administrators and board members in some districts have argued that they needed to cut back on transportation expenses to focus spending in classrooms. In many cases, the transportation expenses that are targeted are connected to school choice or magnet school programs that are part of efforts to maintain diversity. PICS may have contributed to the weakening of diversity’s appeal. Austerity-related desires to cut back on transportation spending have the most interesting political effects when they interact with a shortage of spaces in desirable schools. Shifting from citywide enrollment to neighborhoods, or shrinking the boundaries of geographic zones within which families choose schools, makes the school capacity issues more visible because it restricts parents’ choices to a set of schools that may all seem like bad options.

In Boston, concern over increasing transportation costs led Superintendent Carol Johnson to propose that the city shift from permitting school choice within three zones and providing citywide transportation for charter schools to a five-zone choice system, with charter school transportation provided only within a student’s home zone (Vaznis, 2009a). The changes were part of Johnson’s “Pathways to Excellence” plan for academic improvement and increased financial efficiency (Johnson, 2009a). During the public engagement process run by the Boston Public Schools (BPS) in 2009, city residents raised concerns about shortages of seats at particular grade levels in the proposed zones, as well as the concentration of schools designated as underperforming in zones with larger populations of students of color. A coalition of community groups organized to oppose the shifts (Vaznis 2009a, 2009b). Ultimately, Superintendent Johnson recommended to the school committee that it postpone acting until these and other issues could be resolved (Johnson, 2009b). A fall 2010 report noted that given the existing segregation, reducing transportation costs would likely concentrate disadvantaged students in schools (McArdle, Osypuk, & Acevedo-García, 2010). The rezoning controversy intersects with Superintendent Johnson’s plans to close some schools and expand others. Early in 2011, on the request of several civil rights groups, the Department of Education opened an investigation about the closing of schools in BPS and whether they demonstrated racial discrimination (Valencia, 2011). In November 2011, the Boston School Committee approved a package of school closures, school expansions, and new schools (Guilfoil, 2011), but on December, 31, 2011, the Boston Globe reported that the city was still “moving slowly” on changing its school choice policies (Vaznis, 2011).

Although, strictly speaking, PICS may not be directly invoked when school districts reduce their numbers of schools or cut back on transportation, this particular approach to reducing spending may represent part of a larger chilling effect of the decision.

Assignment stability

Providing greater stability in assignment has become an important issue in many communities. When district policies impose frequent changes of school on students, families are inconvenienced, and real estate prices may even be affected. These issues are most acute in regions where the school-age population or the overall population is rapidly increasing or decreasing, and where neighborhood demographics are in transition.

In Plano, Texas, a Dallas suburb, the school board in late 2009 drew new attendance boundaries that will make both an old and a new high school more integrated by race and income than if students had been assigned by the neighborhood. This measure was passed in response to the rapid influx of low-income, non-White students, which often disrupts patterns of stable attendance policies. Many parents are angry because the new boundaries will prohibit some children from attending the high school closest to their homes (Campoy, 2010). According to the Wall Street Journal, the board president, Lloyd Jenkins, said, “The chosen plan aligned best with the board’s principles, which included balancing the number of students and using existing facilities” (Campoy). However, the realignment agreed to in December 2009 has not yet started; parents in Plano West are protesting and proposing the building of a new high school, something the board was scheduled to consider in September 2011 (McIlwain, 2011). Plano shows how the local politics of student assignment are increasingly tied to school construction and the economy.

Late in 2009, frustration about the effects of enrollment shifts on assignment stability peaked in Wake County, North Carolina, a school district that has been famous for its approach to integration. The Wake County schools had a policy that capped the percentage of a school’s students who were free and reduced-price lunch recipients. The district’s enrollment has been growing rapidly, and because of the influx of new students, compliance with the diversity policy required frequent reassignments of students to different schools. This instability frustrated parents. Compounding the issue, some of Wake County’s schools are on year-round sessions, and in some cases, students were reassigned to year-round schools when their parents had not requested such a placement.

These and other frustrations came to a head in the 2009 school board elections, which seated a board whose majority supported ending the socioeconomic-status-balancing policy. In a meeting in late March 2010, the new five-member majority of the board voted to end the district’s long-standing diversity plan with stated intentions of providing more stability in assignments and reducing transportation costs (Goldsmith & Hui, 2010). After first proposing a neighborhood-based plan that would likely increase building costs (e.g., to match school capacity to population), the new superintendent took responsibility for developing a new student assignment plan that incorporates proximity and choice (“Tata Assembles Student Assignment Team,” 2011). The local NAACP filed a complaint with the Office for Civil Rights (OCR) in fall 2010, which has resulted in an official investigation into whether the student assignment change was racially motivated. In its recent response to OCR inquiries, the Wake County School Board defended its change, citing in part low achievement and long bus rides. In fact, the response claimed that the diversity policy was unfair to low-income students (“Wake School Board to OCR,” 2011). As of this writing, the situation in Wake remains politically volatile.

Legally, PICS did not apply to Wake County’s policy of socioeconomic integration. However, the general questioning of diversity as a goal of education policy, of which PICS is a part, seems to have emboldened critics of the Wake County diversity policy. Counter-mobilization by the NAACP in Wake County showed the continued strength of civil rights groups organized for racial equity, though how far the rollback of Wake County’s diversity policy was able to get before the civil rights coalition responded suggests that race-neutral education politics may obscure the ways in which some ostensibly race-neutral policies continue to burden communities of color (see McDermott, Frankenberg, Diem, & DeBray, 2010).

Overall, the local policy-making response to PICS has emphasized returns to neighborhood schools and/or socioeconomic-based plans, as well as adoption of multifactor student assignment plans along the lines suggested by Justice Kennedy. These responses show a range of local perceptions of PICS, from a mandate for race-neutrality demanding rapid compliance to a decision whose ambiguities leave room for other kinds of diversity policies. Local politics, especially community acceptance of or frustration with pre-PICS diversity policies, has shaped districts’ responses to the decision. The politics around these responses are complicated by fiscal austerity, which reduces local willingness to pay for transportation of students outside their neighborhoods, and by families’ rising expectations of school choice and stability in assignments. Unlike in the earlier era of court-mandated desegregation, because school boards voluntarily implement these policies, retaining the community’s support for policy decisions is essential.

CHANGING FEDERAL PRIORITIES

Although PICS, to many in the civil rights community, appeared at the time to portend the outright abandonment of school-level integration as a federal goal, there are some recent indications that in fact the federal level continues to play a role in shaping the terms of what type of political response is possible. Immediately after passage of the No Child Left Behind Act (NCLB), the U.S. Department of Education issued regulations that gave NCLB choice precedence over existing desegregation orders in determining where students would enroll in school (DeBray-Pelot, 2007; Lewin, 2005). Also, during the second Bush term, the U.S. Department of Justice initiated unitary-status proceedings in many Southern school districts under federal court supervision (Holley-Walker, 2010). In 2011, however, federal policy appears more ambiguous. Although Congress put in place the Technical Assistance for Student Assignment Programs (TASAP) grants program via the budget process, as discussed in the next section, the program was not debated at the time, and it is not particularly visible. And although the Obama administration’s guidance about race-conscious policies within the limits of PICS remains to be clarified, OCR has demonstrated support via more aggressive enforcement of existing remedial race-conscious plans and investigating racial disparities and discrimination, as well as some indications of supporting local efforts to adopt race-conscious policies.

TECHNICAL ASSISTANCE FOR STUDENT ASSIGNMENT PLANS GRANTS

Late in 2009, the U.S. Department of Education made grants to 11 school districts under the Technical Assistance for Student Assignment Plans program. All 11 were already engaged in revision of their student assignment plans; they included Boston and JCPS (Louisville), which we have discussed earlier. The one-time grants paid for technical assistance in preparing, adopting, or modifying student assignment plans and then implementing them. These plans are to be implemented in accordance with the parameters of the PICS decisions on school desegregation that recognize a compelling governmental interest in avoiding racial isolation and the resulting resegregation in the nation’s schools, while facilitating student diversity.

With TASAP, the federal government responded to local policy makers’ interest in finding ways to continue pursuing diversity after PICS. Jeff Simering, legislative director at the Council of Great City Schools, explained,

There was a fair amount of confusion with respect to the Parents Involved decision, but it was also clear that Justice Kennedy’s separate opinion meant that there were still a variety of steps that school districts could take to promote integration. Our concern was that the split decision would serve as a barrier or a disincentive for districts to pursue voluntary desegregation plans. To the extent that districts interested as a policy goal could get some technical assistance with plans with the decision, the Council thought that would be desirable. We proposed that to the Congress and worked with NAACP Legal Defense and Education Fund to undertake some of those activities through Title IV of Civil Rights Act, which also was broad enough to allow for this focus. (J. Simering, personal communication, 2010)

According to Simering, the House Education and Labor Committee, which has jurisdiction over the technical assistance grants under the Civil Rights Act, determined, along with the appropriations subcommittee, that these types of technical assistance grants to school districts were within the parameters of the current Title IV authorization language (J. Simering, personal communication). Our initial review of the 11 awardee districts’ applications revealed that virtually every funded district had already enacted a plan to support student diversity and/or prevent resegregation, whether through choice or the monitoring of post-unitary-status agreements.

Because the TASAP grants are ending in summer 2011, there has not yet been a published report of findings about the impact of the program, although the authors plan to assess the impact of the TASAP grants in all 11 districts, in terms of both adoption of student assignment policies and community political dynamics.⁶ At this point, we find TASAP’s existence to be solid evidence for the proposition that even in the midst of the testing and accountability pressure of NCLB, the federal government’s commitment to racial equity is not yet over. Although the Obama administration did not initiate the creation of TASAP, it is demonstrating receptivity to its goals.

FEDERAL PRIORITY TO PROMOTE DIVERSITY IN DISCRETIONARY EDUCATION SPENDING

The National Coalition on School Diversity is a civil rights coalition formed in 2009, housed at the Poverty and Race Research Action Council, that has advocated for “affirmatively expanding support for policies that directly ensure that educational and social benefits reach all racial groups” in federal education policy (Poverty and Race Research Action Council, 2010, p. 1). Among other policy priorities, this group has strongly urged the Obama administration to rescind the Bush administration’s 2008 post-PICS guidance from the OCR, which the coalition maintains was “misleading,” “suggest[ed] that race-conscious plans were no longer permissible” and “advis[ed] districts to adopt ‘race-neutral’ policies” (Poverty and Race Research Action Council, p. 2). The federal government initially interpreted PICS to mean that it was unconstitutional to consider students’ race. After the transition from President George W. Bush to President Barack Obama, however, the federal executive branch also appears to be signaling to local school districts that it endorses attempts to push the boundaries of PICS; one such example is OCR and the Department of Education’s approval of the new race-conscious multifactor student assignment policy in Ector County, Texas.⁷ Its strongest statement yet was in December 2011, when the Department of Education and the Department of Justice jointly released guidance affirming the educational importance of pursuing diversity in K–12 and outlining the legal means to achieve diverse schools; they also promised to provide technical support for districts in this area.

In 2010, the coalition played an integral role in securing the inclusion of diversity as a priority for further discretionary spending by the secretary of education.  The new priority reads, in part:

By encouraging local educational agencies and postsecondary institutions to take steps to promote student body diversity, including racial and ethnic diversity, and, in the case of local educational agencies, to avoid racial isolation, the Department can assist these agencies and institutions in better preparing their students to compete in the global marketplace. Any steps taken by these agencies and institutions to further these efforts must be done in accordance with applicable U.S. Supreme Court precedent. (“Secretary’s Priorities for Discretionary Grant Programs,” 2010)

This priority was subsequently included in the 2011 charter school notice of funding availability (NOFA), but not the Investing in Innovation NOFA.

To summarize, although the civil rights community had hoped for a more robust and visible commitment on the part of the Department of Education to active promotion of voluntary school integration efforts, there is evidence that the actual history of the federal role in education post-PICS is still being written, albeit in incremental steps. As was the case in local response, outside groups have helped to shape the federal response to PICS.

CONCLUSION

As the Supreme Court justices’ dueling interpretations of Brown v. Board of Education in their PICS opinions demonstrate, student assignment policies embody a range of different ideas about whether equity requires identical or different treatment of students in different demographic groups. For example, some people believe that equity means guaranteeing all students access to their neighborhood school, whereas others believe that balancing enrollments according to some demographic criteria is the best way to achieve and maintain educational equity. School districts are also using Justice Kennedy’s concurrence, in particular, to guide further policy efforts for diversity. Consistent with what prior research on the implementation of court decisions would lead us to expect, the precise details of these responses have varied, reflecting differences in how lower-court judges apply the law, whether a party files or revives a legal challenge, and in the political contexts in which local school boards make policy. Immediately after PICS, several federal judges urged a move toward unitary status and a “backing off” from the use of race. However, the general pattern since approximately late 2008 has been far more tempered and nuanced, with judges recognizing that Kennedy’s concurrence did not in fact call for universal abandonment of all race-conscious policies. Ironically, districts not under order were more likely to follow this pattern, while some lower court judges have expanded the interpretation of PICS to districts under remedial court order as a signal to end such cases. In school districts where lawsuits did not directly affect policy-making, PICS nonetheless affected shifting student assignment policy by shaping both policy maker and citizen preferences for choice and stability during a period of fiscal retrenchment. Although further study of the nationwide impact at the local level is needed, we believe that the evidence so far shows that demand for integrated education is far from dormant.

Other issues have interacted with PICS to shape the responses to it. Variation in quality within large school systems means that there are generally fewer seats in desirable schools than there are students, which makes conflict over how to allocate these seats especially heated. Parents, particularly those who have figured out how to operate within a particular system, desire predictability and stability in where their children will attend school. The ongoing recession and fiscal crisis in local governments has increased scrutiny of all school spending. Transportation related to diversity policies has come in for particular criticism, because in most places, it seems to be understood as an add-on, or as a priority that competes with school improvement and closing the achievement gap rather than as a means of achieving those goals.

Several areas of uncertainty remain at this point. One is how long the effects of the 2008 financial crisis will force fiscal austerity on school districts, with the accompanying pressure to reduce transportation for school choice, magnet schools, and other diversity-related programs. Because PICS and austerity arrived nearly simultaneously, it is hard to separate the effects of the two developments. Based on the Roberts plurality opinion and Kennedy’s concurrence, one possible result of PICS could have been policies that define “diversity” in more nuanced ways than the JCPS and Seattle definitions that the majority rejected. However, the pressure for budget reductions may forestall any such reexamination, if any districts had been inclined in that direction, because enhancing diversity frequently means spending more money on student transportation.

As we have argued throughout, the implementation and effects of U.S. Supreme Court decisions are matters that require many years of analysis and interpretation to assess. Our aim has been to provide a preliminary framework on which other legal scholars, historians, and social scientists may profitably build. Given the continuing centrality of race in matters of educational policy in the United States, we hope that the documentation of and discussion about the patterns we have presented here will continue.

Notes

1. The Roberts plurality opinion distinguishes PICS from traditional remedial cases, so it should not be applied to these cases. Further, the PICS decision does maintain that diversity is a compelling state interest, which could be useful in these or other K–12 cases.

2. These districts could, as some have, choose to implement cross-district student assignment plans.

3. Ironically, despite his concern for how busing affected black students, his clients have largely been non-black or white students.

4. The court in the Lower Merion case ultimately applied strict scrutiny but justified doing so as a result of citing other judicial precedent. PICS was the first time strict scrutiny was used in evaluating race-conscious K–12 policy, and the four dissenting justices argued that it did not apply. Justice Kennedy also suggested that some of the alternative student assignment policies he suggested would not require strict scrutiny analysis. One of the ways to legally test the bounds of PICS moving forward, supported here by the Obama Department of Justice, will be by limiting the extent to which strict scrutiny is applied in K–12 cases because a lower standard of review would make it much easier for a school district’s policies to be found constitutional.

5. Although the New York City schools as a whole were not under court order, there was an active case concerning this school. CIR also separately challenged the district on its race-conscious policy for the Selective High School Institute, discussed earlier in this article.

6. A Spencer Foundation small grant in 2011–2012 will support our study of TASAP.

7. In April 2011, Ector County, Texas, adopted a post–unitary student assignment policy that assessed each student’s diversity according to seven distinct factors, three of which relate to race. The district stated that its policy had the federal government’s approval and “attention... in a very positive way” (Ector County, 2011).

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