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Debbie O'Leary
School of Law - Bloomington

Chuck Carney
School of Education

Last modified: Friday, June 29, 2007

School desegregation, free speech: Experts comment on this week's Supreme Court rulings

June 29, 2007

EDITORS: The following professors are available to comment on this week's Supreme Court rulings considering school desegregation and free speech in schools.

Resegregation will now continue, but Kennedy's opinion is promisingly moderate. By a 5-4 margin, the U.S. Supreme Court rejected on Thursday plans by two public school districts in Louisville, Ky., and Seattle to take into account students' race. According to Indiana Law Professor Kevin Brown, the Supreme Court's opinion in the two desegregation cases is likely to roll back efforts by many public school districts to increase the racial and ethnic diversity of their schools.

"There can be little question that the Court's opinion yesterday will increase the trend toward the resegregation of public schools that has been going on for the past 20 years," he said. "The only bright spot for advocates of school integration was in the concurring opinion written by Justice Anthony Kennedy. While five justices did agree to strike down the plans presented by Seattle and Louisville, Kennedy wrote a separate concurring opinion. Unlike the Roberts' plurality opinion, Kennedy accepted the argument by the school districts that avoiding racial isolation could be a compelling interest. While Kennedy did not think the plans presented to the Court were narrowly tailored to that compelling interest or the interest in diversity, he clearly signaled more of a willingness to accept the use of racial classifications for purposes of school desegregation than the Roberts' plurality opinion. Rather than being firmly aligned in the conservative camp, Kennedy may very well be moving into the middle ground on race and education formerly occupied on the Court by Justice O'Connor."

Brown is a professor of law at the IU School of Law—Bloomington and director of the Hudson & Holland Scholars Programs. His research interest is primarily in the intersection of race, law and education. Brown has published more than three dozen articles or comments on issues such as school desegregation, African-American immersion schools, and increasing school choice. In 2005, his book, Race, Law and Education in the Post Desgregation Era, was published by Carolina Academic Press. A frequent speaker at scholarly conferences, Brown also has spoken on issues of race, law and education to groups at the annual Convention of the NAACP, the Congressional Black Caucus Braintrust Meetings, the National Bar Association, the American Bar Association, and the Justices of the Indiana Supreme Court.

To speak with Brown, contact Debbie O'Leary, 812-855-2426 or

School leaders could see this week's Supreme Court ruling on student speech as license to further restrict speech, according to an IU School of Education professor. The court ruled against Joseph Frederick, who took on his school district in Alaska after a suspension for displaying a banner with the message "BONG HiTS 4 JESUS."

Martha McCarthy, chancellor's professor and chair of the Department of Educational Leadership and Policy Studies, said schools may feel able to curtail more speech. "I think schools are going to say, this court's going to be more perceptive to constraints placed on student expression, so let's see what the next one's going to be, and will it go to the Supreme Court," she said. "So I think the implication's going to be that schools feel that they have more of the judicial power on their side right now so they're probably going to press against what the first amendment limits are."

McCarthy said the justices tried to make the decision very narrow. Justices Samuel Alito and Anthony Kennedy wrote in a concurring opinion that the decision covers only speech dealing with illegal drug use. Justice John Paul Stevens wrote in a dissenting opinion that the ruling does "serious violence to the First Amendment."

The court could have broadened the ruling during this term by considering another case, McCarthy said. The court declined to consider a 9th Circuit decision upholding an unwritten policy that prohibits t-shirts with anti-homosexual statements. "That really pits expressing your religious views against the school's duty to try to maintain respect for diversity and civil expression," McCarthy said. "So it's going to be real interesting to see what happens in some of those cases. We have cases on both sides of that issue right now."

To speak with McCarthy, contact Chuck Carney, 812-856-8027 or