Supreme Court observers and school officials across the country are still awaiting the Court’s decisions in two pending casesone from Seattle and one from Louisvilleconcerning the constitutionality of race-based student assignment in  K-12 education. Meanwhile, they should pay close attention to another ruling last weekthis one by a California state courtregarding pupil assignment.

The decision, American Civil Rights Foundation (ACLF) v. Berkeley Unified School District, upheld an innovative Berkeley public school voluntary integration program. Ifas many (perhaps most) knowledgeable analysts expectthe Supreme Court strikes down the Seattle and/or Louisville plans, the Berkeley-style program may become the wave of the future.

How the Berkeley Plan is Different From Those Before the Supreme Court

The Seattle and Louisville cases each involves a student assignment system in which the school district considers the race of individual students in determining which school each student attends. Although the Seattle and Louisville plans are not identical, both take into account a student’s race as one of the “tie-breakers” to be used when more students than can be accommodated seek to attend a given school.

Both districts employ race-based assignments in order that the racial composition of each school in the district bears some resemblance to the racial composition of the entire district. Keeping schools in some kind of racial balance, they argue, enhances the diversity, and thus the quality, of the education offered at each school.

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The Berkeley plan that was upheld by a state court judge last week also seeks to integrate schools so that each one looks, racially speaking, somewhat like the district as a whole. And again, the stated justification is that students at all schools should benefit from the diversity found within the district as a whole.

But Berkeley officials had one problem that Seattle and Louisville school administrators did not: In California, a state constitutional amendment adopted by the voters in 1996 (Proposition 209) forbids, among other things, all “discriminat[ion] against, or preferential treatment to, any individual on the basis of race . . . in the operation of public education.”

Seemingly because of this state constitutional provision, Berkeley officials devised a plan that looks, when school assignments are made, not to the race of each individual student, but instead to the racial makeup of the neighborhood from which that student comes. Under the plan, the City is broken up into 445 separate “planning areas,” each one between 4 and 8 city blocks in size. Every planning area is assigned, based in part on the percentage of students of color who live there, a “diversity” score of 1 to 3. The diversity score of a student’s neighborhood, among other things, is then used to decide where that student should be sent to school.

What the State Court Said in Upholding Berkeley’s Plan

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In other words, because Berkeley looks at the race of each small neighborhood, rather than the race of each small child, there is no Proposition 209 problem.

Is Consideration of the Racial Composition of a Schoolchild’s Neighborhood Constitutional?

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In the present case, Berkeley chose to focus on small groupings of households (4 to 8 blocks large). Does that broadening of the admissions criteria from one house to, say, 30 or 40, make the program less race-based? Is that less gimmicky?

As a more general matter, should we ever differentiate between government consideration of a person’s race, on the one hand, and government selection of (ostensibly race-neutral) criteria, like neighborhood, on the other hand, when the criteria are themselves selected because of their racial characteristics?

Imagine, for example, that Berkeley used the “diversity score” of each student applicant’s neighborhood in order not to integrate, but to segregate: to keep students who live in predominantly white neighborhoods from attending schools with children who live in neighborhoods of color. Would we say that, because the race of no individual child is being considered, the equal protection presumption against the use of race is not implicated? Surely not. Indeed, wouldn’t such a plan be just as problematic as the legally-mandated segregation programs that existed before Brown v. Board of Education that looked at the race of each individual child?

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The Support for the California Judge

Against all this analysis, however, are statements by, of all people, the conservative Justices who touted the virtues of a “color-blind” Constitution in the University of Michigan affirmative action cases.

In those cases, Justices Thomas and Scalia argued that the University of Michigan Law School (and undergraduate departments) should not have been constitutionally permitted to consider the race of individual applicants in order to increase racial diversity in the university. They included in their argument the suggestion that Michigan had otherpresumably constitutional unobjectionable”race-neutral” options available to promote racial diversity, such as simply changing the criteria of admissions so that whatever criteria are used will yield a more racially balanced class: “With the adoption of different admissions methods . . . the [University] could achieve its vision of the racially aesthetic student body without the use of racial discrimination.”

The implication of this passage is clear: Choosing admissions criteria with an overt eye towards yielding a racially diverse class does not constitute “racial discrimination.” (This could be done in myriad ways: deemphasizing the LSAT, picking students randomly from a lotteryas Justice Scalia suggested at oral argument in the Michigan casesor selecting students from particular neighborhoods or particular feeder schools). Thus, in these Justices’ eyes, racial discrimination lies only in the overt use of race itself as a criterion that is taken into account with respect to each applicant at the moment of application.

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I have previously written about how Justice Ginsburg (who sees no absolute bar on race-consciousness, so long as it is inclusionary rather than exclusionary) seems right here, and how covert race consciousness may actually be less preferable than a more open consideration of the race of each student applicant. But if the Berkeley model begins to be emulated, we will see whether Justices Thomas and Scalia truly meant what they wrote in the Michigan cases, or whether their statements were just convenient ways to attack what Michigan had done therestatements from which these Justices will have to distance themselves in future cases.