wing social security numbers must be uniformly applied to all students and not applied in a selective manner to specific groups of students.
Based on this guidance, school leaders should review existing enrollment policies to determine whether any have the unintended consequence of discouraging enrollment of immigrant students to public schools.
Last year, I blogged about the impact of a higher education Supreme Court diversity case, Fisher v. University of Texas on K-12 schools. As discussed in that blog, although the decision was a higher education decision, it raised important takeaways for primary and secondary schools wishing to use race as a factor in admission or assignment decisions. As also reported in that blog, the Court remanded the decision to the lower appellate court, the Fifth Circuit Court of Appeals, to decide whether the University could establish that its consideration of race in the case was narrowly tailored. Specifically, the Supreme Court directed the University to show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The Court also directed the Fifth Circuit to apply “exacting scrutiny” to the decision and not to defer too heavily to the University about the necessity of relying on race.
As Jennifer Smith from our firm reported late last week in an FR Alert, the Fifth Circuit recently ruled on the remanded case, and found that the University properly used race as a factor in a “holistic review” in the admissions process. As Jennifer explained:
The Court of Appeals explained that “[t]he sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race.” For those limited seats not filled by the Top Ten Percent Plan, the University uses race as one factor in a holistic review aimed at selecting students missed by the Top Ten Percent Plan, such as those with special talents or experiences, including the experience of being a minority that attended an “integrated school with better educational resources.”
The case does not constitute a major change in the law in this area, and the takeaways from our previous blog remain relevant for K-12 school leaders. Specifically, race can still be used as a factor in admissions or assignment decisions, although only where great pains are taken to establish the necessity of such use. Legal counsel for the student in the case have vowed to appeal, though, and it is uncertain if the Supreme Court would agree with the Fifth Circuit if it took the case on for review. As always, school leaders should consult with legal counsel and take care when using race in any admissions or assignment decisions in light of the flurry of legal activity in this area in the courts.
The Supreme Court decided this week not to hear a recent case from the Seventh Circuit Court of Appeals (which has jurisdiction over Illinois, Indiana, and Wisconsin) regarding public school graduation ceremonies in churches. As Franczek Radelet reported when the decision was handed down in 2012, the Seventh Circuit held that a Wisconsin school district violated the First Amendment’s Establishment Clause by holding a graduation ceremony in a church with pervasively religious symbols. The Seventh Circuit found that such action could lead to the perception that the school endorsed the Christian religion. As we explained, the court stated:
Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.” The majority reasoned that a reasonable observer could “conclude that the District would only choose such a proselytizing environment aimed at spreading religious faith – despite the presence of children, the importance of the graduation ceremony, and, most important