Seattle could design a diversity plan that passes judicial muster

Recent commentary about the Seattle Public Schools' response to the Supreme Court's rejection of its voluntary diversity program often reflects an unnecessary, and inaccurate, concession.

The received — but mistaken — wisdom seems to be that the Supreme Court disallowed any use of race in the admission of students to the local public high schools.

Instead, the Supreme Court disallowed the district's current diversity program, which defines "diversity" solely in terms of race and, within the category of race, divides the world into whites and nonwhites for purposes of assigning students.

Justice Anthony Kennedy's concurring opinion in Parents Involved in Community Schools reaffirms that diversity is a compelling government interest in education and that race can be a component of a comprehensive diversity program.

So, what was wrong with Seattle's approach? Seattle used race as the sole diversity factor, as the second part of a four-part tiebreaker system: At step two, the only thing that counted was the student's race and the racial composition of the high school at issue.

Indeed, the policy could have truly perverse effects, from the perspective of enhancing student diversity. If a high school had already achieved a student body with an aggregated minority population in excess of the targeted range, a Native American student would be denied admission under the second step, even if she would have been the only Native American person enrolled in the particular high school.

How would denying admission to a Native American person on these facts enhance "diversity" at the school? The clear answer is that it wouldn't, yet because the Seattle school district's plan amalgamated all minorities into one undifferentiated whole, it would not have taken into account at all whether a particular racial minority was represented within the student body.

What would a constitutionally permissible diversity plan look like? First, it must define diversity more broadly than race. Race can be one factor, but it cannot be the only factor. Second, the plan cannot absolutely exclude any person from a school based solely on race. Third, the plan must look at each applicant as a whole and afford individualized consideration. Finally, if the school district uses race as part of a comprehensive diversity program, it must regularly review the plan to ensure that it remains necessary.

There is no reason why Seattle's public-school system could not design a comprehensive diversity program that meets these requirements.

Thus, Seattle could take a student's race into account in high-school assignments. The district should look at minority enrollments on a disaggregated basis and afford preference to minorities that are unrepresented, or underrepresented, at a particular high school. If no or few Native Americans attend Ballard High School, a Native American applicant could be given a plus point toward admission.

Other, nonracial factors also would need to be part of the mix. Socioeconomic status would be a good additional factor to consider; students from economically disadvantaged households might also receive a plus point incident to the diversity program. This additional factor might be enough to establish the constitutionality of the program; to ensure a favorable court ruling, the school district should add a third factor.

In order to meet the individualized-consideration requirement and define diversity with sufficient breadth, the school district could require would-be students to write short essays explaining why they wish to attend a particular school. Although all public high schools must meet certain state mandated minimums, high schools are far from identical. Some have great football teams, others have good vocational programs, whereas others have strong college-preparatory programs.

Allowing a would-be varsity wrestler to explain why he really wants a shot at making the high school's state championship team would be exactly the kind of open-ended, whole-person review that Justices Lewis Powell, Sandra Day O'Connor and, now, Kennedy have endorsed. The school district would have an obligation to read the essays and to consider admitting students based on them.

If no student is admitted or excluded solely on the basis of race, the school district considers all students in an individualized way, and race serves as one factor among many used to ensure diverse student populations, the program would likely survive federal court scrutiny.

To be sure, such an approach would not be cheap. At a minimum, the Seattle school district would have to hire admissions officers to assist in the application process and these officers would have to undertake admissions decisions not unlike those of a college admissions office.

But if public universities can manage to create and operate diversity programs that pass constitutional muster, and that consider race as one of several diversity factors, why can't the Seattle Public Schools? It is a matter of will and a matter of money. It is not a matter of constitutional law.

Ronald J. Krotoszynski is a visiting scholar at the Seattle University School of Law and professor of law at the Washington and Lee University School of Law in Lexington, Va.