On August 30, 2013, the National School Boards Association filed an amicus brief prepared by Franczek Radelet attorneys in the U.S. Supreme Court. The “friend of the court” brief addresses the significant detrimental impacts of state provisions prohibiting the use of race in public education on public school districts. The brief urges the Court to consider those detrimental effects in ruling on the constitutionality of one such provision, a constitutional provision from Michigan that will be reviewed by the Court this term. The NSBA brief was joined by the American Association of School Administrators, the Horace Mann League, and the National Association of Elementary School Principals.

The brief was filed in Schuette v. Coalition to Defend Affirmative Action. In Schuette, the Supreme Court will address the issue of whether Michigan violated the Equal Protection Clause of the U.S. Constitution by amending its constitution to prohibit race and sex-based discrimination or preferential treatment in public-university admissions decisions. Although the challenge to the constitutional provision arose in the higher education context, the provision is not limited to prohibiting the use of race in higher education. It includes broad prohibitions against reliance on race by “the state,” including local school districts.

The brief points out that public schools may, under current Supreme Court case law, adopt race-conscious policies in limited circumstances to promote diversity in schools. The brief argues that the Michigan constitutional provision and similar provisions in other states effectively nullify this authority and imperil local governance of public education by prohibiting the use of race by public schools for any reason. The brief also notes that the vagueness of such provisions may result in legal disputes that will unduly burden public schools and drain resources away from the classroom into the legal system.

Franczek Radelet attorneys Patricia Whitten, Jennifer Smith, and Jackie Wernz prepared the amicus brief, with assistance from Franczek Radelet LEADS fellow Kent Sparks.