School District 65 Analyzing Racial-Balancing Methods in LIght of Supreme Court Decision

By Larry Gavin

On June 28, the United States Supreme Court struck down plans used by school districts in Seattle, Wash., and Louisville, Ky., that took students' race into account in order to racially balance their schools. Both cases were decided under Parents Involved in Community Schools v. Seattle School District #1.

The Court's decision was split 5-4, with two concurring and two dissenting opinions that together exceed 180 pages.

Justice Anthony Kennedy, who joined in a limited part of the majority opinion, wrote a separate concurring opinion that takes on import because he cast the swing vote. His opinion suggests that school districts may still use race-conscious measures to racially balance their schools in a "general" way, but that their ability to take the race of a student into account in making individual, student-by-student decisions has been substantially narrowed.

The decision will likely affect School District 65, which uses a 60-percent guideline in racially balancing its schools. Under the guideline, no racial group may exceed 60 percent of the student body of a school.

In an effort to meet the guideline, District 65 takes the race of a student into account in deciding whether to grant the student admission into King Lab and Bessie Rhodes magnet schools. The District considers the impact admitting the student will have on the racial balance of both the student's attendance-area school and the magnet school.

"We want to have an analysis on what the restrictions are and what the possibilities are as we manage this into the future." - Dr. Hardy Murphy

District 65 also takes the race of a student into account in deciding whether to grant the student permission to attend a school other than the student's attendance-area school and whether to admit an English-dominant student into the two-way-immersion (TWI) program.

Superintendent Hardy Murphy told the RoundTable that he has asked District 65's  attorney to analyze the Supreme Court's decision and to evaluate what the District is currently doing against the decision. He said, "We want to have an analysis on what the restrictions are and what the possibilities are as we manage this into the future.

"This is a very significant issue," Dr. Murphy added. "We're trying not to react without having that kind of analysis."
    
The Court's Decision

The Seattle and Louisville plans
The cases the Supreme Court decided involved plans voluntarily adopted by school districts in Seattle and Louisville to racially balance their schools. The plans contain some features similar to the methods used by School District 65.

The Seattle plan applies to the city's 10 high schools and is used to racially balance the schools that would otherwise be segregated due to segregated housing patterns. The high schools are all theme or "choice schools." If a school is oversubscribed by incoming ninth-grade students, the district applies prioritized "tiebreakers," one of which is the race of the applicant.

The race-based tiebreaker is triggered if the racial makeup of the student body at from the makeup of the students of the District as a whole. Other tiebreakers are a sibling's attendance at the school and geographic proximity.

In Louisville, the school district created "resides" areas and elementary-school clusters to facilitate integration. Incoming students could apply to two schools in their cluster. Decisions to admit students to a school within their cluster took the students' race into account. Under the plan, each school was required to maintain a black-student enrollment of at least 15 percent and no more than 50 percent. Thirty-four percent of the students in the school district are black.

The majority opinion
The majority opinion, written by Chief Justice John Roberts and joined in by Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Kennedy, held that the plans were subject to "strict scrutiny" because they made classifications based on race. In order to satisfy the strict scrutiny standard, the Chief Justice said, the school districts must demonstrate that the use of race in student assignment plans must be "narrowly tailored" and achieve a "compelling" governmental interest. This has been the standard test to evaluate the Constitutionality of classifications based on race.

Chief Justice John Robers could not muster a majority to  hold that the elementary and high school districts in Seattle and Louisville lacked a compelling interest in a diversified education.

The Chief Justice gave two examples where the Court had previously found a "compelling" interest to take a student's race into account in the school context: first, where the plan was to correct the effects of intentional discrimination by the school district; second, in the 2003 Grutter case in which the Court upheld that the University of Michigan's admissions policy which took the race of a student into account as one of many factors in an effort to achieve a compelling interest "in diversity in higher education."

The Chief Justice distinguished the Grutter case from the Seattle and Louisville plans on the basis that the diversity interest in Grutter was not solely in racial diversity, but other types of diversity such as fluency in languages, overcoming personal adversity and family hardship, community service, etc.

The Chief Justice said, "The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a 'highly individualized, holistic review'." He said the Seattle and Louisville plans did not consider race as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas and viewpoints, but for some students, race "is determinative standing alone."

The majority thus held that the Seattle and Louisville assignment plans could not be upheld under Grutter.

The Chief Justice, however, could not muster a majority to take the next step and hold that the elementary and high school districts in Seattle and Louisville lacked a compelling interest in a diversified education.

Instead, the majority concluded that the Seattle and Louisville plans were not "narrowly tailored" to achieve their stated ends. The majority concluded that in Seattle, only 52 students were affected by the racial tiebreaker; and in Louisville the racial guidelines accounted for only three percent of the assignments. The majority opinion said, "The minimal impact of the districts' racial classifications on school enrollment casts doubt on the necessity of using racial classifications."

The majority also held the school districts failed to show that they had considered methods other than explicit racial classifications to achieve their stated goals. "Narrow tailoring requires serious, good faith consideration of workable race-neutral alternatives," the Chief Justice said.

Plurality, concurring and dissenting opinions
While the basis of the majority's opinion was decided on limited grounds, the Chief Justice's opinion contained sweeping comments in two sections that Justice Kennedy did not join in and that were supported by only three other Justices: Scalia, Thomas and Alito. This "plurality opinion" has no precedential effect, but it provides the views of four justices.

The plurality held that the goal of racial balancing in itself was not a compelling interest and that "outright racial balancing" is "patently unconstitutional."

The plurality opinion rejected the school districts' arguments that they had a compelling interest to racially balance the schools because education and broader socialization benefits flow from a racially diverse learning environment. The plurality opinion rejected this argument, stating that the plans were "not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits" but instead were designed to attain "a level of diversity within the schools that approximates the district's overall demographics." The plurality held that the goal of racial balancing in itself was not a compelling interest and that "outright racial balancing" is "patently unconstitutional."

In a separate concurring opinion, Justice Kennedy disagreed with the plurality opinion. He said, "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue." He said, "To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in school, it is, in my view, profoundly mistaken."

Justice Kennedy said in his view, school districts "are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race." He suggested permissible strategies may include "strategic site selection of new schools, drawing attendance zones with general recognition of the demographics of neighborhoods, allocating resources for special programs, recruiting students and faculty in a targeted fashion, and tracking enrollments, performance, and other statistics by race." He opined that these measures would pass Constitutional muster because they apply generally and did not make decisions with respect to individual students on the basis of their race. He said individual classifications "may be considered legitimate only if they are a last resort to achieve a compelling interest."

Justice Anthony Kennedy disagreed with the plurality opinion, saying "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue. ... To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in school, it is, in my view, profoundly mistaken."

Four justices, Steven Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsberg, dissented. In a 77-page opinion, Justice Breyer concluded the student assignment plans "are supported by compelling state interests and are narrowly tailored to accomplish those goals." He said, "A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it."

He concluded, "The last half-century has witnessed great strides toward racial equality, but we have not realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret."

Analysis

Because Justice Kennedy's was the swing vote, a racial-balancing plan that meets the parameters of his opinion may still pass Constitutional muster because it would be supported by him plus the four dissenters. In addition, because the Court did not expressly overrule Grutter, a plan that considered race as one of many factors in order to attain "diversity" may be defensible. It is unclear, though, whether the factors considered important by the Court in Grutter at the university level could be applied at the elementary school level.

Justice Kennedy suggested permissible strategies may include "strategic site selection of new schools, drawing attendance zones with general recognition of the demographics of neighborhoods, allocating resources for special programs, recruiting students and faculty in a targeted fashion, and tracking enrollments, performance, and other statistics by race."

In a written analysis provided to the RoundTable, Jonathan Baum, a former Board member and civil rights attorney, said he thought the Supreme Court's decision would continue to permit School District 65 to draw attendance area lines with an eye toward maximizing racial diversity in each school, and to actively recruit students to enroll in magnet schools with an eye to minimizing racial imbalances in attendance-area schools and at the magnet schools themselves. He thought, though, that using race as a factor in deciding whether to grant an individual student admission to a magnet school or to grant a permissive transfer would be held unconstitutional.

Mr. Baum also opined that the District could use "race-neutral alternatives" to bring together students from diverse backgrounds. He said, "An example of such a 'race-neutral alternative,' although the Court does not mention it specifically, is, of course, the kind of assignment system that seeks to minimize concentrations of poverty that we have discussed. I think this is important for future Board's discussions of this issue."

During the past ten years, a number of school districts have decided to balance their schools by income, rather than race, including Wake County, N.C.; Cambridge, Mass.; St. Louis, Mo.; and LaCrosse, Wis. Some of these decisions were in response to lower court decisions that school districts could not take race into account in deciding whether to admit a student to a school, even if the goal was to racially balance the school.

Other school districts have made the decision to balance their schools by income for educational reasons. "Divided We Fail: Coming Together Through Public School Choice," a 2002 report from the Century Foundation Task Force, states, "Eliminating the harmful effects of concentrated school poverty is the single most important step that can be taken for improving education in the United States."

D65 next steps
Dr. Murphy told the RoundTable that the Supreme Court's decision will be on the Board's agenda for the July 16 meeting. He said he expected the District's attorney to give a report to the Board at that meeting and that the report would be in open session.

Council Wrap

By Bill Smith 

The Mayor was one of the leads in the July Fourth parade.

Aldermen on Monday approved the Central Street master plan developed by City consultants, but left the zoning regulations that would implement the plan to be acted on by the Zoning Committee of the Plan Commission after a review that is scheduled to begin tonight.

They also did the following:
• Introduced, but sent back to committee, proposed zoning amendments that would change regulations for mixed-use districts, including the Fifth Ward area represented by the Dr. Hill Neighborhood Association;
• Introduced zoning amendments that would set new restrictions limiting the height of homes built on substandard lots;
• Introduced an ordinance to give Evanston Landmark status to a duplex at 318-320 Dempster St. designed by noted architect and Evanston resident Daniel Burnham.

Eve's Excuse

Snake on a Plane 

Large photo by Dan Edelstein; inset photos courtesy of Block Museum.

A 250-foot-long snake surprised Sidney Block on his 80th birthday in 2003. But unlike the curse of Cleopatra or the scourge of Indiana Jones, this serpent did not bite.  Its scales are made of art.

With a head created by Jules Feiffer and a tail by the late Ed Paschke, the mixed-media/multi-artist project called "The Exquisite Snake" has wriggled its way into the Block Museum of Art at Northwestern University, where it should stun visitors from July 6 through Aug. 26.

Bob Hiebert, co-owner with Mr. Block of Chicago's Printworks Gallery, conceived the idea of the snake, which is based on a Surrealist collage method from the 1920s and 30s. He enlisted nearly 200 artists to contribute segments on paper, for 14 months keeping the work a secret from his business partner.

Contributors used a variety of media, among them three-dimensional collage, photocopy-enhanced with colored pencil and acrylic, linoleum block, Polaroid transfer, tempera paint, wax and animal fur.  Some played on the snake theme, creating a collage of paper serpents erupting from a jar or a scale-like surface of gold paint and watercolor.

Accompanying the project are the artists' initial replies to Mr. Hiebert's request, the templates on which the segments were based and photographs of the birthday party, held at the Jean Albano Gallery in December 2003 -  gifts Mr. Block and his late wife donated to the Block, along with the snake.

Free guided tours of "The Exquisite Snake" will be offered Saturdays at 2 p.m. from July 14 to Aug. 25; families are invited for collaborative art activities and light refreshments 1-3 p.m. on July 29.
Two hundred artists contributed segments to the snake now on exhibit at
Northwestern University's Block Museum. 

Council Extends Downtown Taxing District But Postpones Vote on Evmark Contract

By Bill Smith

At its July 11 meeting the City Council gave final approval to an ordinance extending for 12 years the special taxing district that supports downtown marketing efforts. But aldermen postponed action on a contract with Evmark - the downtown marketing association - to run the programs of the entire district.

Travis Marlatte, chair of the Downtown Evanston Merchants Association, said the contract would give Evmark "the ability to do whatever it wants without public comment and without oversight.

"Where are the checks and balances for the spending of over $500,000 of our money?" he asked.

Alderman Steve Bernstein, 4th Ward, picked up on those objections, saying the proposed 12-year contract was far too long.

He said the agreement would permit termination for cause but did not provide standards or performance goals, so there would be no way to prove the City had sufficient cause to terminate the deal.

Ald. Bernstein said, "I'm absolutely pleased with Evmark's performance, and the people who are serving on its board are wonderful people, but I wouldn't vote for myself for 12 years." He proposed that the contract term be limited to one year.

Mr. Marlatte, who owns The Things We Love, 614 Davis St., also criticized the non-profit organization for its practice of promoting itself when it advertises downtown businesses.

"As a PR firm for downtown," he said, "they should be invisible to the general public."

He said if a major corporation's ad firm trumpeted its own name in ads for the business, "that would be their last ad campaign."

Les Shindelman, 1572 Maple Ave., president of the Downtown Residents Association, said downtown residents should be added to the Evmark board and that key metrics should be established to measure Evmark's performance.

He said Evmark's operations should be more transparent to all in the City with board meeting minutes, the annual budget and periodic performance reports posted on the City's or Evmark's website.

Daniel Kelch, the owner of Lulu's restaurant at 804 Davis St., said he is the new chair of EvMark and that the organization has members who represent a broad spectrum of downtown interests, including independent merchants, property management companies, and large developers. He said the residential management companies provide some representation for downtown residents now and that EvMark leaders plan to add residents to the group's board this fall.

But Ald. Bernstein said there have to be more downtown residents on the board. "In fairness, I don't think landlords represent the same interests as their tenants," he said.

"We have to know how the board gets to be the board. I don't think that's an unreasonable request for $500,000 a year of our money," Ald. Bernstein added.

Council Exploring Options for Waste Hauling

By Bill Smith

Under a plan considered by the aldermen, the City would issue a franchise for a single waste hauler to serve all commercial accounts in the City, replacing the 10 haulers licensed here now.

The proposal, developed by the City's public works staff with help from the Solid Waste Agency of Northern Cook County (SWANCC), says that a single hauler would be able to offer lower rates to businesses and would reduce the number of trucks rolling through the City's streets and alleys.

That in turn is predicted to reduce wear and tear on the roads and help the environment by reducing truck exhaust fumes.

The plan also envisions that a single hauler would make it easier to increase recycling by businesses.

Public Works Director David Jennings said Skokie, one of 24 Chicago-area municipalities that have adopted the single-franchise plan, has saved its businesses $1 million a year with the program.

SWANCC's executive director, Brooke Beal, said any local businesses that currently have cheaper rates would be grandfathered into the program at their current rate.

The plan would also let the City establish a franchise fee, estimated to yield about $200,000 a year, which Mr. Jennings said could be used to buy new trash and recycling carts for City residents.

Mr. Beal said a SWANCC survey of Evanston businesses found great inconsistency in rates charged by haulers -- with some businesses paying four times as much as others for the same service.

Alderman Ann Rainey, 8th Ward, said the City needs to do more outreach to businesses and apartment buildings that would be affected by the change. "I don't want to be a naysayer, but such a radical change with so little preparation -- people have been doing it the old way for over 100 years." She said much confusion followed a recent change in how garbage hauling is handled for some condo buildings in town.

The aldermen on Monday voted to introduce the proposed franchise ordinance and referred it back to the Administration and Public Works Committee for further discussion in two weeks.

1890-Maple Project Tabled

By Bill Smith 

Evanston aldermen Monday voted 6-3 to table plans for a 14-story rental development at 1890 Maple Ave. until after the downtown planning process is completed this fall.

Five aldermen, a majority of the Council, favor the project, and three are opposed. Since the developer is seeking a zoning variance because of the height of the proposed building, six votes are required for approval.

The swing vote is held by Alderman Anjana Hansen, 9th Ward, who said at the City Council's last meeting in June that while 1890 Maple "is a good project with a good design," it would be "cheating residents" to approve a new development while the downtown planning process is underway.

Alderman Ann Rainey, 8th Ward, who proposed that the development be tabled, said, "It would be a crime for the Council to vote this down. It's a beautiful project that can't be lost."

Ald. Rainey also said she has learned that several grocery chains are interested in the ground floor retail space there, and that among those interested is Trader Joe's, a company City officials have been trying to lure to town for years.

The planning process is the key issue, she said. "Let the charrettes happen and see where we go from there. If the results are that this project cannot go forward, we'll take it off the table and defeat it. If it looks like a go, then we'll take it off the table and pass it."

Aldermen Edmund Moran, 6th Ward, Cheryl Wollin, 1st Ward, and Melissa Wynne, 3rd Ward, voted against move to table the plan. 

The developer of the 1890 Maple Project, Robert King of Carroll Properties, did not attend the Council meeting.

More Bike Lanes Proposed

By Bill Smith

Downtown Evanston would be more welcoming to bike riders under plans discussed this month at a Downtown Plan Committee meeting.

City engineer Rajeev Dahal said the City is seeking approval from state and federal officials for a network of bike lanes and bike routes across Evanston.

The system would have its greatest density downtown, with portions of Church, Davis and Lake streets getting designated 5-foot-wide bike lanes, while other downtown streets, including Elgin Road, Clark Street and Hinman, Chicago and Maple avenues, would gain new bike route signage.

Mr. Dahal said that assuming approvals and funding come through, implementation of the project could start in October.

He said the project will use signs with a shape common in Europe but new to the United States.

Instead of being square or "portrait-shaped" rectangles, taller than they are wide, the new signs will be wide but skinny, with a single line of information, including a bike route symbol, a destination name and the mileage to the destination. They will be green with white reflective lettering.

"We had to get federal approval to do the new signs," Mr. Dahal said. He said Chicago also plans to use the new signs and that the Chicagoland Bike Federation and the Evanston Bicycle Club are conducting before and after surveys to see whether the new signs do a better job of informing riders about bike routes.

Downtown Plan Committee Chairman Larry Widmayer said the new design should be much clearer than previous signage.  Mr. Dahal added they will take up relatively little space on posts that must accommodate other signage.

The bike lanes will be designated with reflective thermoplastic, Mr. Dahal said, which should last a few years.

The plan also calls for adding bike lanes on both sides of Emerson Street, the major east-west artery into downtown, from the canal east to Wesley Avenue.

That will reduce what are now 17-foot auto travel lanes to 12 feet. "We think it will have a traffic-calming effect," Mr. Dahal said.

He added that there have been a couple of accidents on Emerson Street in which people edging to see around parked cars at cross streets have been hit by cars traveling close to the parked vehicles. The bike lanes should improve sight lines from the side streets for everybody, Mr. Dahal said.

Plan Commissioner David Galloway called the Emerson plan "a real win-win" that should also slow traffic on the street.

Want Fries With That?

Among the automobile entries in the July 4th parade was this one, which made a political statement with its use of vegetable oil instead of petroleum. 

Employment Workshop for  Ex-Offenders

By Elizabeth Foydel

Cynthia Alexander of the Safer Foundation speaks to ex-offenders about training.
Photo by Elizabeth Foydel

The Illinois state policy of releasing nonviolent offenders early has Evanston preparing itself to integrate incoming ex-offenders into the community and work environment, although the City does not have specific statistics regarding the number of ex-offenders or the reason that ex-offenders come to Evanston.

On June 27 the Youth Job Center of Evanston presented at the Evanston Public Library a workshop titled "Ex-Offenders and Employment" in an effort to address the growing number of ex-offenders.

The Youth Job Center at 1114 Church St., serves the Chicago area but Evanston in particular. It worked in conjunction with other organizations to "help ex-offenders realize and gain access to the resources available to them," said Allison Kelly of the Youth Job Center.

"People are reluctant to hire these ex-offenders, but employers should realize that 'ex-offender' is such a broad term - it applies to a myriad of things - and that ex-offenders who have gone through training and employment programs should be given a chance," said Ms. Kelly.

Among the opportunities presented to the audience of ex-offenders were the Youth Job Center's New Beginnings Reentry Program, a 12-week internship whereby a person with a criminal background who graduates from their three-week job training and technology skills program can gain work experience, as well as other similar support, training and job-placement programs.

Speaker Cynthia Alexander of the Safer Foundation described the free services offered to those with criminal records, which include GED (General Educational Development Tests, or the equivalency of a high school diploma) courses and interview skills.

Said Ms. Alexander, "Our employers know from the very beginning that Safer clients have criminal convictions, but they are willing to work with ex-offenders. There is a 54-percent rate of recidivism [repetition of criminal behavior] among ex-offenders in general, but only an 18- percent rate for our clients. Ex-offenders who are working every day are less likely to re-offend."

Milestone for Land Trust

The Lighthouse Community Land Trust plans to rehab this house in south Evanston and make it affordable by, among other things, retaining ownership of the land.

On June 25, City Council approved a request from the Citizens' Lighthouse Community Land Trust (CLT) for funds to support the purchase and rehabilitation of its first property. A grant of $99,500 in HOME (HUD) funds was approved for the purchase of a single-family house located in the Second Ward. After the rehab, the home will be marketed to low- to moderate-income families, with priority given to residents or workers in Evanston. 

The trust will continue to hold title to the land and will put limits on subsequent sales prices of the house, in order to maintain its affordability. Land held by the Citizens' Lighthouse CLT will be leased to the homebuyer at a cost below what might otherwise be possible. This means that homes purchased on community land trust sites will remain affordable permanently - for the original buyers and their heirs and for each subsequent buyer.

Citizens' Lighthouse CLT will be marketing its first property later this summer. The application process requires homebuyer counseling. Contact Wilfred Gadsden at office@citizenslighthouse.org or at 847-772-6702.