Constitutional Requirements for Race-Conscious Policies In K-12 Education

Voluntary efforts to promote racial integration at the K-12 level have met strong resistance from the courts in recent years, despite the long history of court involvement in desegregration litigation.  Race-conscious policies have invoked both the integration ideals growing out Brown v. Board of Education and the diversity rationale in higher education stemming from Justice Powell's opinion in Regents of the University of California v. Bakke.  The policy-making and recent case law in this area are unsettled, however, because two bodies of equal protection law can apply to race- conscious policies in the K-12 setting.  One body of law applies to court-ordered desegregation remedies, and the other applies to voluntary programs and policies, either remedial or non-remedial in nature. The general legal principles and recent case developments are discussed below.
 
 
Summary Of Desegregation Principles
 
Since the U.S. Supreme Court’s decision in Brown v. Board of Education, the desegregation of intentionally segregated public schools is constitutionally mandated and must occur "with all deliberate speed." The Brown case did not set a clear timeline to remedy segregation, however, and responsibility for desegregation and the implementation of Brown has been left to local school boards and the federal district courts to achieve.  In recent years, the U.S. Supreme Court has scaled back the protections available through the courts and provided increasing latitude to school districts. The frequent result has been the "resegregation" of integrated or partially integrated school districts.