Accepting Justice Kennedy’s Dare: Jefferson County Public Schools and the Future of Integration

1. Accepting Justice Kennedy’s Dare:Jefferson County Public Schools and the Future of Integration CREATE Conference October 9, 2009 Daniel Kiel The University of Memphis Cecil C. Humphreys School of Law

2. Objective: evaluate the constitutionality of the new JCPS student assignment plan in order to determine if this attempt to provide diversity in a large, urban district can be a viable model for districts seeking to achieve and/or maintain student diversity within the current legal landscape

3. The Old JCPS Plan • Geography – initial assignment based on geography • Choice – parents choose… • Among schools within cluster • Among magnet schools • Among non-magnet schools outside cluster • Capacity – transfer requests subject to school capacity • Racial Makeup – all non-magnet schools must have between 15% and 50% African American students • In 2001, JCPS student population is 34% African American • 3% of student assignments affected by this criterion

4. PICS v. Seattle School District (aka Meredith v. JCPS) • White parent sues district when her son is not assigned to a school because he would upset the school’s racial makeup • Supreme Court declares the old JCPS voluntary diversity plan unconstitutional

5. The Dare “The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds…Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.” -         Justice Anthony Kennedy, concurring in PICS decision

6. Accepting the Dare “This community really values an integrated school system. It is a core value within Jefferson County. We will find some creative ways to continue to model that.” - JCPS Superintendent Sheldon Berman in response to PICS decision

7. The New JCPS Plan • Divides district into Geographic Area A and Geographic Area B • Each non-magnet school must have between 15% and 50% students from Geographic Area A • Increased magnet schools and programs • Staff development regarding diverse student populations • Recruitment of diverse teachers, counselors, and administrators

8. Geographic Area A: Neighborhoods where… Geographic Area B: Neighborhoods where… Less than 47.9% of JCPS Students living in the neighborhood are Minority Students More than 47.9% of JCPS Students living in the neighborhood are Minority Students AND OR Average Median Household Income in Neighborhood is Less Than $41,000 Average Median Household Income in Neighborhood is More Than $41,000 AND OR Average Adult Educational Attainment in Neighborhood is More than high school diploma + some college Average Adult Educational Attainment in Neighborhood is Less than high school diploma + some college Area A vs. Area B

9. Is it Constitutional? • Does it trigger “strict scrutiny”? • Does it pursue a “compelling state interest”? • Is it “narrowly tailored”?

10. Strict Scrutiny • Why the level of scrutiny matters • Strict scrutiny triggered whenever individual racial classifications are made • Justice Kennedy: “drawing attendance zones with general recognition of the demographics of neighborhoods” will not trigger strict scrutiny

11. Strict Scrutiny and the New Plan • Classifies geographic areas, NOT individuals • Are Geographic Areas A and B “attendance zones?” • Individual classifications: Yes • Individual classifications based on race: No • Is Area A a proxy for race?

12. Compelling State Interest • In PICS, majority of Court find diversity in public education to be a compelling interest • Kennedy: “…diversity, depending on its meaning and definition, is a compelling educational goal.” • Diversity for the sake of educational benefit – NOT diversity for the sake of diversity (I.e., racial balance) • Diversity = more than race • Geography, socioeconomic status, average educational attainment of neighborhood

13. Narrow Tailoring – Consideration of Alternatives • Requires serious, good-faith consideration of race-neutral alternatives • JCPS considered multiple race-neutral plans (neighborhood schools, open enrollment)

14. Narrow Tailoring – Flexible Use of Race • Race cannot be a determinative factor • No quotas, separate procedures, insulation of students from comparison • Hard ranges disfavored • JCPS uses multi-tiered diversity, BUT hard ranges • Under new plan, race is not determinative

15. Narrow Tailoring – Undue Burden • Prohibits “undue burden” on non-minority students • For instance, undue burden exists when a student is foreclosed from consideration for a final available space because of race • Under new JCPS plan, race is not determinative…even with regard to the last available space in a school

16. Conclusions • Strict scrutiny ought not be triggered, but probably will be • New JCPS plan does pursue a compelling state interest • New JCPS plan is narrowly tailored • No individual racial classifications • Race is not a determinative factor – indeed, individual race may be irrelevant in making a student assignment