The recent rapid growth of the North Texas area has forced most school districts to build new facilities, open new campuses, and redraw individual school boundaries. In doing so, many districts have faced questions about whether racial diversity is an appropriate factor to consider when deciding which students should attend which campus.

First, there is no legal requirement that a school district maintain any specific percentage of racial/ethnic makeup in its schools. For example, if a school district is comprised of 60% Hispanic students district-wide, there is no requirement that each individual campus within the district maintain a 60% balance of Hispanic students at each elementary, middle, and high school.

In fact it would likely violate the US Constitution to assign students to particular campuses for the purpose of maintaining a specific percentage of students of a particular race at that campus. This is because “

[a]ccepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 730 (2007).

Further, the United States Supreme Court has consistently held that the Constitution is not violated by racial imbalance in the schools, without more evidence. Once a school has achieved “unitary status”—meaning it has legally complied with desegregation obligations imposed as a result of impermissible segregation by law in the past—“any continued use of race” as a reason for assigning students to a particular school “must be justified on some other basis.” Id. at 721. “Once the racial imbalance due to the de jure violation” of segregation “has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.” Freeman v. Pitts, 503 U.S. 467, 494 (1992).

In the rezoning context, “if a school district draws facially neutral boundaries—meaning they are not based on race— Courts apply the less stringent “rational basis” analysis to determine if a policy comports with the Constitution. Id. A school zoning plan is not facially neutral if it seeks to examine students individually, ascertain their race, and assign them to a school on that basis. See Lewis v. Ascension Parish Sch. Bd., 806 F.3d 344, 355-56 (5th Cir. 2015). Importantly, a school board’s “mere awareness or consideration of racial demographics in drawing district boundaries will not alone trigger strict scrutiny… the [party bringing a constitutional challenge] must demonstrate that race was ‘the predominant factor motivating the [governing body’s] decision.’” Id. (citing Miller v. Johnson, 515 U.S. 900, 916 (1995)). To determine whether district policies defining boundaries truly are facially neutral, the 5th Circuit looks to those factors generally applied in political gerrymandering cases, such as whether lines are drawn in a highly irregular way that could only be meant to segregate. Id. at 356. Further, the Court will look to see if the district acted with discriminatory intent, or in a way that results in a negative impact on a particular group. Id. If so, strict scrutiny applies.

In sum, a school district may not assign an individual student to a specific campus according to the student’s race. Further, there is no requirement that a campus maintain a racial makeup proportionate to the community at large or the nation. While a district may consider diversity as one factor in drawing boundaries, it may only do so holistically, and without making decisions based specifically on the race of individuals. And finally, districts are certainly permitted to gather and maintain demographic data that identifies a student’s race so long as that data is not used to assign that student to one campus over the other. Rezoning within these parameters can help a district avoid costly litigation over the constitutionality of a campus boundary plan.

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.