This is not the first time that principles of affirmative action have been applied to address discrimination in K-12 schools.  In Parents Involved in Community Schools v. Seattle School District No. 1, et al, 551 U.S. 701 (2007), the Court held that two K-12 admissions plans that would have used diversity as a predicate for placement were not narrowly tailored and, accordingly, unconstitutional.

The two districts were located in Seattle, Oregon and Louisville, Kentucky.   By a 5-4 vote, the Supreme Court found their policies were not narrowly tailored, as they both used race as essetially the primary and dispositive consideration in placement.  Chief Justice John Roberts wrote in the plurality opinion that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but it ruled that “[t]he present cases are not governed by Grutter,” opting to distinguish pertaining to higher education. Neither plan involved individualized consideration of students and both employed a very limited notion of diversity (“white” and “non-white”). The goal of preventing racial imbalance did not meet the Court’s standards for a constitutionally legitimate use of race: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.'” In a separate opinion concurring in the judgment, Justice Kennedy did state that public schools may sometimes consider race to ensure equal educational opportunity.  But it remains to be seen if this approach will be embraced by a majority of the Court in a properly presented case with an appropriately tailored plan.

The Boston case is, however, likely not an appropriate vehicle for such a ruling. The plan is an “interim” measure that has not been implemented. Key information about its actual effects is not available. And while it is likely that the district will adopt a similar approach for the long term, that has to happened. That said, as a supposedly “race neutral” approach that may well yield an arguably appropriately diverse student body there are aspects of the case and plan that might lead the Court to take it up, if an when asked to do so.