UC Law Constitutional Quarterly


David I. Levine


This Article first discusses the potential impact of Grutter and Gratz on student assignment plans in public elementary and secondary schools. Professor Levine concludes that public school officials who desire to use race in making student assignment decisions probably will be able to articulate a compelling governmental interest under Gruter. However, under Gratz, they will have significant difficulty in meeting the narrow tailoring prong of strict scrutiny analysis if they seek to use race as an express, mechanical means of selecting and assigning students. Because school districts will search for race-neutral assignment plans as they attempt to comply with both Supreme Court opinions, Professor Levine then discusses the results of the race-neutral student assignment plan being used in San Francisco public schools.

The school district devised the new race-neutral plan, a Diversity Index based on socioeconomic status, academic achievement, and language skills, after they settled a law suit Professor Levine helped bring on behalf of all Chinese American children in the school district. The lawsuit had challenged the constitutionality of the school district's previous plan, which used racial quotas to assign children to public schools in San Francisco. As part of the settlement, the school district agreed to use race-neutral means to assign children. The article concludes by reporting on the mixed results the new Diversity Index has achieved in its first two years of use.