Supreme Court Advocacy Project On School Desegregation

BY CYNTHIA ROBERTSON

On November 16, approximately 250 HLS students gathered in Ames Courtroom to witness a preview of what may prove to be a landmark Supreme Court case.

On December 4, the Supreme Court will hear oral arguments in two cases challenging voluntary school desegregation policies implemented by local school boards in Louisville and Seattle. The policies examined in these cases – similar to those implemented in school districts across the country – are designed to mitigate the problem of de facto racial segregation in private schools caused by residential patterns. The Supreme Court has never addressed the question of whether public schools may use race as a criterion to assign students to schools for the purposes of desegregation.

Mr. Frank Mellen, HLS ’73, the counsel of record for the respondent in the Louisville case, Meredith v. Jefferson County Board of Education, returned to his alma mater to rehearse his oral argument and to receive constructive criticism from professors and students.

Mr. Mellen, a partner at Wyatt, Tarrant and Combs LLP, will be arguing for the first time before the Supreme Court. He has advised the Jefferson County Board of Education for nearly thirty years on a broad range of legal matters. He has long familiarity with the board’s desegregation efforts, having advised the board on its 1991 revisions to the plan. In 2000, he advised the board after the 2000 ruling in Hampton v. Jefferson County Board of Education, which abolished the school district’s system of racial quotas for magnet schools.

The current case emerged from the school board’s decision in 2002 to deny a requested transfer to Joshua McDonald, a kindergartner whose mother, Crystal Meredith, wanted her son to attend school closer to home.

A 2001 revision to the board’s policy facilitating an integrated school system required minority student enrollment of no less than 15 percent and no greater than 50 percent in each public K-12 school in the district. Ms. Meredith’s request for Joshua’s transfer was denied because the move would have impacted the racial balance at the two schools.

Ms. Meredith did not exercise the available option to submit a request for appeal of her son’s school assignment before his enrollment in kindergarten, nor did she do so before his first grade year. Ms. Meredith did submit a petition for review before her son’s second grade year, and his request to change schools was granted.

The Board of Education’s position is that the Board needs to assign students to schools in order to maintain integration, at least while housing patterns continue to defeat the goal of racially integrated community schools. “Our goal, clearly – and we don’t apologize for it – is a racially integrated school system,” said Mellen, and to achieve that goal, “race is one of several factors” that the school district uses to assign students to schools.

The moot court judges pressed Mellen, as the justices are likely to do, on the necessity of using racial classifications in order to achieve the goal of integration, rather than some other alternative. Mellen replied that the school board had considered and rejected other alternatives, because it “does not believe that [alternatives] would work as well at achieving racial integration.” Although he conceded that “there is some socioeconomic plan that could accomplish racial diversity,” the school board’s decision to employ racial classifications was based on its research and extensive prior experience, to which the Court should accord deference. Mr. Mellen emphasized that the board’s plan was a rational, effective means of achieving the desired result.

The panel of moot court judges included: Professor Martha Minnow, visiting Professor James Ryan, Associate Dean of University of Virginia School of Law, Professor Ward Farnsworth, Boston University School of Law, and Maree Sneed, Partner, Hogan & Hartson. Ms. Sneed is counsel for the respondent in Meredith’s companion case, Parents Involved in Community Schools v. Seattle School District No. 1. Professor Lawrence Tribe, who had been scheduled to appear on the panel, was forced to cancel at the last moment due to a personal emergency.

At the close of the moot court, Professor Minow said, “I hope we pushed you hard – we meant to.” After the formal argument, Mr. Mellen engaged in a more informal panel discussion critiquing his performance, and examining the issues involved in the case. Students were permitted to ask questions at the end of the panel.

Mr. Mellen expressed his gratitude for the feedback he received, and his “hope that I helped HLS and its students in some small way by participating” in the event.

This event was organized by the American Constitution Society (ACS) as part of the Supreme Court Advocacy Project, which is sponsored by the Dean’s Office, together with the American Constitution Society (ACS) and the Federalist Society. The Dean’s Office funds the Project, which allows ACS and the Federalist Society to each organize one event per semester.

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