Time to settle

U.S. District Judge Michael M. Baylson compared the two high schools involved in a racial bias case to luxury cars. (File photo)

A federal judge has wisely advised the Lower Merion School District to settle a racial bias case in order to avoid a court ruling that it might not like.

But what on the surface appears to be an argument with a simple solution actually has links to one of the most controversial decisions made by the U.S. Supreme Court under Chief Justice John G. Roberts Jr.

The Lower Merion district was sued last year by black parents who alleged that it had unfairly targeted African American students to be bused past closer Lower Merion High School to Harriton High to achieve greater racial diversity there.

The district contends its attendance plan isn’t racially based. But in court testimony, both Superintendent Christopher McGinley and the consultant who drew the attendance zones, Ross Haber, admitted race was sometimes part of the discussion.

That’s important because of a 2007 Supreme Court ruling that greatly restricted the use of race by public schools in drawing student attendance zones. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said in the majority opinion.

Some say the court’s decision banned race-based attendance plans altogether. But in voting with the majority, Justice Anthony Kennedy said race might “be taken into account” as part of government’s “legitimate interest … in ensuring all people have equal opportunity regardless of race.”

The Lower Merion district can’t very well argue that any consideration of race by it was to provide equal opportunity. Both of its high schools are well funded and provide good educations. Plus the equal opportunity the plaintiffs seek is to attend the school closest to their homes.

U.S. District Judge Michael M. Baylson has suggested the district might make out better by settling with the parents who filed suit on behalf of nine students assigned to Harriton who want to go to Lower Merion. “I just think there are a lot of good-government and civil-rights reasons to settle this case,” said Baylson.

He’s right. And from another perspective, were this case to make its way through the appeals process to the Roberts court, the fact that blacks are the complainants might completely seal the small crack seemingly left open to some race-based solutions by Kennedy’s qualified assent.

That would be unfortunate. The color-blind nation that Roberts insists should exist now simply doesn’t. There are still instances, as Kennedy pointed out, where the only route to that nirvana is to consider race in righting the wrongs that still exist due to past and recent discrimination.

Mandatory busing failed as a solution to segregated schools in America by driving families out of public schools and making them even less diverse. There’s no need to let a busing plan similarly offend black students in Lower Merion schools, which are already diversity-challenged, both racially and economically.

A settlement that ends the Lower Merion lawsuit might be preferable. In the meantime, one might hope for a case that successfully challenges Roberts’ notion that there’s no further need for race-based remedies to discrimination. Especially since Obama administration appointees to the court might think differently.