An interesting piece was posted on the Slate Magazine website a few days ago entitled "How to Keep Brown Alive." As I noted in my last post, the Supreme Court has made it clear that race cannot be used as a factor in assigning students to schools; even if the classification is aimed at creating racial diversity. The Court held that the government could not meet the strict scrutiny test, which it is required to do for race-based classifications. So does this mean that the legacy of Brown v. Board of Education is dead? No says Richard Kahlenberg over at Slate. How about using wealth as a factor in assigning kids to schools? Kahlenberg notes that some 40 school districts are already using plans that assign kids to schools using wealth as a factor. He notes that these policies actually result in very diverse schools . . . even from the stand point of race.

Would such a classification survive Court scrutiny? Possibly. Classifications based upon wealth would be subject to the rational basis test, which as we discussed in class is a far easier hurdle for the government to clear. The goal of having diverse schools would likely be considered a legitimate government interest and using a wealth classification to achieve this goal would likely be deemed reasonably related to the goal. But could this classification still be challenged as being a race-based classification? Possibly. It is likely that white students would claim that this wealth classification is nothing more than a disguise for a race-based classification. Furthermore, these students could probably show that many of these policies were created to get around the recent Supreme Court ban on race-based classifications for assigning students to schools. So both effect and purpose could possibly be shown.