Board of Education Files Appeal to the U.S. Supreme Court to Review Ban on the Use of Diversity in Student Transfers

December 23, 1999
The full text of the filing with the Supreme Court (112K Adobe Acrobat PDF file) is available at the link below.

The Board of Education today [Thursday, December 23, 1999] appealed to the United States Supreme Court to review the decision of the Court of Appeals for the Fourth Circuit in Richmond prohibiting any consideration of race or ethnicity as a factor in approving student transfers. Attorneys acting on behalf of the Board of Education filed the appeal this afternoon.

The Board of Education voted unanimously in November to seek the Supreme Court's intervention because consideration of race and ethnicity is necessary to avoid creating racially isolated schools through student transfers and to maintain important benefits derived from educating students in racially and ethnically diverse school settings.

"The Supreme Court has ruled before that local school officials have the authority and responsibility to correct and avoid racial segregation," said Patricia O'Neill, president of the Board of Education. "The lower court's decision undermines nearly a half-century of progress in Montgomery County and, indeed, the nation in recognizing the benefits of diversity among children in our schools.

"Already the Maryland Association of Boards of Education has voted unanimously to support an appeal to the Supreme Court, and we expect other regional and national organizations to join this effort to overturn the Court of Appeals," O'Neill said. "Without intervention by the Supreme Court, school systems all over the country will be left with a great deal of uncertainty and legal risk in addressing the issue of diversity in student assignments."

The Board of Education has suspended the student transfer policy as a result of the Fourth Circuit court's ruling in October and pending a decision by the Supreme Court. On December 14, the Board directed Superintendent Jerry D. Weast to permit student transfers only on the basis of the following limited circumstances: a documented hardship, the presence of an older sibling at the school at the same time, and/or the continuation of the student to the next higher level of schooling (for example, elementary to middle school) except when affected by boundary changes.

Prior to the Court of Appeals ruling, transfers of students from one school to another were permitted if the transfer did not lead to the creation of a racially isolated student body or negatively impact stability, utilization, and enrollment. The transfer policy became one way that the Board of Education was able to carry out its commitment to Quality Integrated Education, a policy adopted in 1983 to assure a diverse, integrated educational setting.

In the appeal to the Supreme Court, the Board of Education asks the court to address the question of whether "the Equal Protection Clause of the Fourteenth Amendment proscribes all voluntary action by public school authorities limiting student assignments and student transfers in order to avoid creating racially isolated schools, if a student's race is considered for that purpose." The Board argues that race should be allowed as a consideration in deciding student transfers "based on the educational judgment of local officials that racially and ethnically diverse schooling provides important benefits for children."

The Board also argues that there were procedural errors by the Fourth Circuit in entering a summary, final judgement without analyzing the facts of the case and hearing a full presentation of the legal arguments, a requirement necessary when applying strict scrutiny to government conduct under the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals had acted in response to a request for an injunction by a parent representing a student who was denied a transfer from an elementary school. However, the case was never actually tried in the lower court. The Fourth Circuit granted the parent's request for the injunction and then struck down the Board's policy entirely, without the full case being heard.

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