Oregon Law Review : Vol. 86 No. 3, p. 679-732 : Colorblind Context: Redefining Race-Conscious Policies in Primary and Secondary Education
Winters, Lauren E.
This Article examines the ideological differences among the current Court over the interpretation and application of federal law, and the effect these differences have on unsettling prior Supreme Court precedent. Part I reviews the precedent that led to the Court’s conclusion that race-conscious admissions policies in the context of higher education did not violate the Equal Protection Clause of the Fourteenth Amendment. Part II examines the circuit court cases that held the diversity-based benefits identified in the context of higher education justified the exclusive use of race to eliminate racial isolation and segregation in primary and secondary schools. Part III contends that the ideological differences among the current Court created a fourfour- one split that still permits the flexible use of race to integrate public schools. Part IV concludes that, in the aftermath of Parents, local governments can reduce racial isolation and segregation in public schools and avoid strict scrutiny by making school assignments based on socioeconomic status (“SES”) factors because SES assignment plans neither burden a fundamental right nor use racial classifications to determine whether children can attend the schools of their choice.