The New York Times: Editorial critica decisión del Supremo por negarse a tramitar importante caso.

Editorial
Supreme Disgrace

The Supreme Court exerts leadership over the nation’s justice system, not just through its rulings, but also by its choice of cases — the ones it agrees to hear and the ones it declines. On Tuesday, it led in exactly the wrong direction.

Somehow, the court could not muster the four votes needed to grant review in the case of an innocent German citizen of Lebanese descent who was kidnapped, detained and tortured in a secret overseas prison as part of the Bush administration’s morally, physically and legally abusive anti-terrorism program. The victim, Khaled el-Masri, was denied justice by lower federal courts, which dismissed his civil suit in a reflexive bow to a flimsy government claim that allowing the case to go forward would put national security secrets at risk.

Those rulings, Mr. Masri’s lawyers correctly argued, represented a major distortion of the state secrets doctrine, a rule created by the federal courts that was originally intended to shield specific evidence in a lawsuit filed against the government. It was never designed to dictate dismissal of an entire case before any evidence is produced.

It may well be that one or more justices sensitive to the breathtaking violation of Mr. Masri’s rights, and the evident breaking of American law, refrained from voting to accept his case as a matter of strategy. They may have feared a majority ruling by the Roberts court approving the dangerously expansive view of executive authority inherent in the Bush team’s habitual invocation of the state secrets privilege. In that case, the justices at least could have commented, or offered a dissent, as has happened when the court abdicated its responsibility to hear at least two other recent cases involving national security issues of this kind.

Mr. Masri says he was picked up while vacationing in Macedonia in late 2003 and flown to a squalid prison in Afghanistan. He says he was questioned there about ties to terrorist groups and was beaten by his captors, some of whom were Americans. At the end of May 2004, Mr. Masri was released in a remote part of Albania without having been charged with a crime. Investigations in Europe and news reports in this country have supported his version of events, and German Chancellor Angela Merkel has said that Secretary of State Condoleezza Rice acknowledged privately to her that Mr. Masri’s abduction was a mistake, an admission that aides to Ms. Rice have denied. The Masri case, in other words, is being actively discussed all over the world. The only place it cannot be discussed, it seems, is in a United States courtroom.
In effect, the Supreme Court has granted the government immunity for subjecting Mr. Masri to “extraordinary rendition,” the morally and legally unsupportable United States practice of transporting foreign nationals to be interrogated in other countries known to use torture and lacking basic legal protections. It’s hard to imagine what, at this point, needs to be kept secret, other than the ways in which the administration behaved irresponsibly, and quite possibly illegally, in the Masri case. And Mr. Masri is not the only innocent man kidnapped by American agents and subjected to abuse and torture in a foreign country. He’s just the only one whose lawsuit got this far.

This unsatisfactory outcome gives rise to new worries about the current Supreme Court’s resolve to perform its crucial oversight role — particularly with other cases related to terrorism in the pipeline and last week’s disclosure of secret 2005 Justice Department memos authorizing the use of inhumane interrogation methods that just about everyone except the Bush White House thinks of as torture. Instead of a rejection, the Masri case should have occasioned a frank revisiting of the Supreme Court’s 1953 ruling in United States v. Reynolds. That case enshrined the state secrets doctrine that this administration has repeatedly relied upon to avoid judicial scrutiny of its lawless actions.

Indeed, the Reynolds case itself is an object lesson in why courts need to apply a healthy degree of skepticism to state secrets claims. The court denied the widows of three civilians, who had died in the crash of a military aircraft, access to the official accident report, blindly accepting the government’s assertion that sharing the report would hurt national security. When the documents finally became public just a few years ago, it became clear that the government had lied. The papers contained information embarrassing to the government but nothing to warrant top secret treatment or denying American citizens honest adjudication of their lawsuit.

In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an innocent person without any remedy for his wrongful imprisonment and torture. It has damaged America’s standing in the world and established the nation as Supreme Enabler of the Bush administration’s efforts to avoid accountability for its actions. These are not accomplishments to be proud of.

The New York Times: Vacío Legal en caso Blackwater

Blackwater Case Highlights Legal Uncertainties

By ALISSA J. RUBIN and PAUL von ZIELBAUER
BAGHDAD, Oct. 10 — If a private in the United States military fires on civilians, a clear body of law and a set of procedures exist for the military to use in investigating each incident and deciding if the evidence is sufficient to bring charges.

But when private security contractors do the same, it is exceedingly unlikely that they will be called to account. A patchwork of laws that are largely untested, and practical obstacles to building cases in war zones, have all but insulated contractors from accountability.
Those gaps were brought into sharp relief after Sept. 16, when Blackwater guards under contract to the State Department opened fire on unarmed civilians and killed 17 Iraqis, according to the Iraqi government.

Even if the State Department and the Federal Bureau of Investigation, which is now looking into the shooting for the department, determine that a crime was committed, there are formidable obstacles to mounting a case, according to interviews with former prosecutors, lawyers and experts in military and civilian law as it is applied overseas.

Roughly 100,000 American contractors are working in Iraq, but there has yet to be a prosecution for a single incident of violence, according to Scott Horton, a specialist in the law of armed conflict who teaches at Columbia University.

“Imagine a town of 100,000 people, and there hasn’t been a prosecution in three years,” Mr. Horton said. “How do you justify the fact that you aren’t addressing this?”

One remedy is not being discussed: the State Department can waive immunity for contractors and let the case be tried in the Iraqi courts under Order 17, which is the section of the Transitional Administrative Law approved in 2004 that gives contractors immunity.

L. Paul Bremer III, who supervised the drafting of the immunity order as administrator of the United States occupation authority, said: “The immunity is not absolute. The order requires contractors to respect all Iraqi laws, so it’s not a blanket immunity.”

The order was intended as a substitute for a status of forces agreement, which can be made only with a sovereign country, Mr. Bremer said. While the military has immunity from Iraqi law, it agrees in exchange to subject its members to American military law. In contrast, civilian contractors have immunity, but it is unclear which laws, if any, can be used to hold them to account.

The Iraqi government has not begun to discuss legislation to overturn the immunity provision, although the government of Prime Minister Nuri Kamal al-Maliki has said that contractors should be tried under the Iraqi legal system.

However, legal specialists say that the government would probably be reluctant to throw the cases into the Iraqi courts, because there is little confidence that trials would be fair and defendants in those courts have few of the legal protections that are mandatory in the United States.

Contractors accused of crimes abroad could be tried in the United States under either military or civilian law, but lawyers foresee many problems. In both cases there are questions about whether the laws extend to contractors working for the State Department.

The applicable military law, the Uniform Code of Military Justice, was changed at the end of 2006 under an amendment proposed by Senator Lindsey Graham, a South Carolina Republican who is in the Judge Advocate General Corps of the Air Force Reserve, to cover contractors “in declared wars or contingency operations.” But disputes have arisen about whether that would include State Department contractors like Blackwater that provide security escorts for a civilian agency.

As recently as Oct. 3, Defense Secretary Robert M. Gates indicated that no decision had been made on how to apply the new language. In other statements, Pentagon officials have suggested that they would apply the military code to Defense Department contractors. That could leave contractors working for other agencies, such as Blackwater, outside military law.
Neither the Pentagon or the U.S. Embassy in Baghdad responded to requests for comment.
In any case, military lawyers have yet to determine how to put the new language into effect. Among the questions they are wrestling with are these: What categories of crimes should it cover? How should it treat employees who are not American citizens? What are the chances that the provision would be upheld by the Supreme Court?

“There’s also a very open constitutional question about whether we can try civilians in military courts,” said Laura Dickinson, a professor of law at the University of Connecticut and an expert on laws that govern private contractors in conflict zones. Traditionally, there has been resistance to doing so, but Ms. Dickinson said she believes a case could be made that private security contractors authorized to use force would be covered by the code of military justice.

The options under civilian law are little better. The most likely way to prosecute would be through the Military Extraterritorial Jurisdiction Act, which allows the extension of federal law to civilians supporting military operations. Mr. Horton, the Columbia lecturer, said he believed that “a sound basis” existed for using the act to prosecute security contractors.

However, trying a criminal case in federal court requires guarantees that no one has tampered with the evidence. Because a defendant has the right to cross-examine witnesses, foreign witnesses would have to be transported to the United States.

Robert Litt, a former federal prosecutor and deputy assistant attorney general in the Justice Department’s criminal division, said that if anything like the Blackwater shootings occurred in the United States, “within minutes you would have police there securing the crime scene, interviewing witnesses.”

“You’ll have a secure chain of evidence,” he added. “All that requires people on the scene almost simultaneously.”

Several legal experts said that evidence gathered by Iraqi investigators and turned over to the Americans, even within days, would probably be suspect.

Another law that might be applicable is one covering contractors in areas that could be defined as American territory, such as a military base or the Green Zone. But the Blackwater security contractors in the Sept. 16 shootings were in neither place.

The New York Times: Juez frusta política migratoria de la Casa Blanca

Judge Suspends Key Bush Effort in Immigration

By JULIA PRESTON
A federal judge in San Francisco ordered an indefinite delay yesterday of a central measure of the Bush administration’s new strategy to curb illegal immigration.

The judge, Charles R. Breyer of the Northern District of California, said the government had failed to follow proper procedures for issuing a new rule that would have forced employers to fire workers if their Social Security numbers could not be verified within three months.

Judge Breyer chastised the Department of Homeland Security for making a policy change with “massive ramifications” for employers, without giving any legal explanation or conducting a required survey of the costs and impact for small businesses.

Under the rule issued by the department, which had been scheduled to take effect last month, employers would have to fire workers within 90 days after receiving a notice from the Social Security Administration that an employee’s identity information did not match the agency’s records. Illegal immigrants often present false Social Security information when applying for jobs.

The rule, announced with fanfare in August by Homeland Security Secretary Michael Chertoff, was the linchpin of the administration’s effort to crack down on illegal immigration by denying jobs to the immigrants. It is part of a campaign of stepped-up enforcement since broader immigration legislation favored by President Bush was rejected by Congress in June.

If allowed to take effect, the judge found, the rule could lead to the firing of many thousands of legally authorized workers, resulting in “irreparable harm to innocent workers and employers.”
The decision brought a sense of relief to the unusual coalition behind the lawsuit, including the A.F.L.-C.I.O. and the United States Chamber of Commerce, often adversaries. They had feared that the measure would bring mass layoffs in low-wage industries, sweeping up both illegal and legal workers and disrupting the labor force.

Judge Breyer’s decision was an awkward disappointment for Mr. Chertoff, a former federal judge, who was relying on the rule as an enforcement tool since Congress left him with few other options.

“We will continue to aggressively enforce our immigration laws while reviewing all legal options available to us in response to this ruling,” Mr. Chertoff said yesterday in a statement.
Mr. Chertoff said the administration was doing “as much administratively as we can, within the boundaries of existing law” to crack down on illegal immigration, but he called on Congress to revisit legislation to give legal status to illegal immigrants and to impose even tougher enforcement measures.

Some conservative lawmakers who argue for vigorous enforcement of the immigration laws as a priority said they were outraged by the judge’s ruling.

“What part of ‘illegal’ does Judge Breyer not understand?” asked Representative Brian P. Bilbray, Republican of California and chairman of the House Immigration Reform Caucus. “Using a Social Security number that does not belong to you is a felony. Judge Breyer is compromising the rule of law principles that he took an oath to uphold.”

The rule establishes steps an employer must follow after receiving a notice from the Social Security Administration, known as a no-match letter, reporting that an employee’s identity information does not match the agency’s records.

If the employee could not clarify the mismatch by providing valid information within 90 days, employers would be required to fire the worker or risk prosecution for knowingly hiring illegal immigrants.

The rule was set to take effect Sept. 14, but was held up temporarily on Aug. 31 by another judge in the San Francisco court, Maxine M. Chesney, who was sitting in for Judge Breyer at the time.

Yesterday, Judge Breyer ordered a halt to the rule until the court could reach a final decision in the case, which could take many months. He made it clear he was skeptical of many of the government’s arguments.

The decision also bars the Social Security Administration from sending out about 141,000 no-match letters, covering more than eight million employees, which include notices from the Homeland Security Department explaining the new rule.

Other groups bringing the lawsuit include the American Civil Liberties Union, the San Francisco Labor Council and several national and local small-business associations.

Judge Breyer found that the Social Security database that the rule would draw upon was laden with errors not related to a worker’s immigration status, which could result in no-match letters being sent to legally authorized workers. “There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days,” even if they are legal, he wrote.

Lucas Guttentag, a lawyer for the American Civil Liberties Union, said the government had demonstrated “a callous disregard for legal workers and citizens by adopting a rule that punished innocent workers and employers under the guise of immigration enforcement.” A.F.L.-C.I.O officials had estimated that some 600,000 of their members could receive the letters and be vulnerable to unjust dismissal.

In a December 2006 report cited in the court documents, the inspector general of the Social Security Administration estimated that 17.8 million of the agency’s 435 million individual records contained discrepancies that could result in a no-match letter being sent to a legally authorized worker. Of those records with errors, 12.7 million belonged to native-born Americans, the report found.

In a Sept. 18 letter to Mr. Chertoff, the Office of Advocacy of the Small Business Administration supported a claim in the suit that federal officials had failed to carry out a required analysis of the impact on small businesses before announcing the new rule. The office is independent from the Small Business Administration, which supported the rule.

Judge Breyer is the brother of Justice Stephen G. Breyer of the Supreme Court and was nominated by President Bill Clinton in 1997.

Washington Post: Supremo se abstiene, estado de Nueva York deberá financiar educación especial en centros privados

Court Is Split, Won't Hear Special-Education Case

By Robert BarnesWashington Post Staff Writer Thursday, October 11, 2007; Page A08
The Supreme Court yesterday said that it was evenly divided on an important case that would have told public school districts when they must pay for private tuition for special-education students.

The split means that New York must pay private tuition for students for which it cannot provide an appropriate education, even if the student has never attended public school. But because the justices were unable to reach a majority opinion, their action affirms a lower-court decision and creates no national precedent.

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Only eight justices heard Board of Education of the City of New York v. Tom F. (06-637) because Justice Anthony M. Kennedy recused himself. The two-sentence opinion did not say how justices voted, so it is unclear whether the court was divided along the ideological groupings that were the hallmark of last term. In a record number of 5 to 4 decisions, Kennedy was the only justice to be in the majority each time. As is customary in the court, Kennedy gave no reason for his recusal.

The case involved a requirement within the Individual with Disabilities Education Act that schools must provide a free appropriate public education to students with special needs. If the school district itself cannot provide such support, a parent may apply for private-school reimbursement.

New York made such payments for a time to the parent in this case, former Viacom executive Tom Freston. It then stopped, saying a 1997 amendment to the law meant it should get the chance to try to educate Freston's son before paying for private school.
Freston, who has said he donated the reimbursements to a New York public school and was bringing the case on behalf of parents who could not afford the expenses, said the law does not require a "try-out" in public schools.

Though only a small percentage of children are covered under the law, the number of students receiving private-school tuition is rapidly increasing. Governments and school systems supported New York, while organizations for the disabled were on Freston's side.

The Wall Street Journal: Facultades del Presidente, tribunales estatales y la Corte Internacional de Justicia

Bush, Texas Court Tussle
Justices to Decide If State Must Heed International Order

By JESS BRAVIN October 11, 2007; Page A8
WASHINGTON -- The Supreme Court heard arguments yesterday about whether President Bush can order state courts to obey a ruling from the International Court of Justice, a test of executive power that could affect the president's power to conduct foreign affairs.

Since the terrorist attacks of Sept. 11, 2001, the White House has repeatedly claimed authority to act without approval from Congress or courts, especially in areas of national security such as wiretapping and terrorism trials. Congress and the Supreme Court have reined in some of these moves.

• What's Happening: The Supreme Court heard arguments on a case that tests the president's foreign-affairs power.
• The Question: Can the president, following the decision of a U.N. court, force Texas to hold an additional hearing before executing a Mexican national?
• What's Next: A decision is expected by June.

The question now facing the court is whether the president, following the decision of the United Nations court, can force Texas to hold additional hearings before executing a Mexican national convicted of the rape and murder of two girls in 1993.

If a decision goes the government's way, the case could further concentrate power in the hands of the executive. "There's a potential, at least, if the court gives the solicitor general everything he asks for, that the president can rewrite state law to conform to his view of the best foreign policy," said Michael Ramsey, a law professor at the University of San Diego.

At issue is the 1963 Vienna Convention on Consular Relations, which requires that a home nation be notified when one of its citizens is arrested abroad. It also states that the arrested traveler should be advised he can contact his consul for assistance. The U.S. ratified an annex giving the international court "compulsory jurisdiction" to decide disputes over the treaty.

The State Department insists foreign governments follow the treaty when they detain Americans, but local authorities in the U.S. have a spotty record of compliance, leading to complaints against Washington at the International Court of Justice. In 2004, The Hague ordered the U.S. "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences" of 51 Mexicans on death row, to determine if they had been prejudiced by the lack of consular assistance.

The ruling set off a debate within the Bush administration. It initially concluded the ruling was unenforceable. But with the U.S. under criticism abroad for its perceived disregard of international obligations, Secretary of State Condoleezza Rice persuaded the president to reverse course, officials said. In February 2005, he issued a memorandum directing state courts to comply with the ruling -- while simultaneously withdrawing from the agreement to let The Hague decide any future such cases.

Texas accused the president of exceeding his authority, and the state's Court of Criminal Appeals agreed. The resulting Supreme Court case pits Texas, backed by 28 other states, against its former governor, uncomfortably aligned with condemned inmate Jose Ernesto Medellin, a Houston gang member who grew up in the U.S. The European Union and dozens of other foreign governments filed friend-of-the-court briefs siding with the Bush administration.

On the right, Chief Justice John Roberts and Justice Antonin Scalia could barely contain their disdain for Mr. Medellin's position: that the international court compelled Texas to act. "Are you telling me that the ICJ judgment empowers either federal or state courts to do things which their laws do not permit them to do?" asked Justice Scalia. Donald Donovan, the attorney representing Mr. Medellin, struggled to find words suggesting that the world court's order already was authorized by the U.S.

Liberal Justices Ruth Bader Ginsburg and Stephen Breyer, meanwhile, said the matter wasn't so complicated. "As I read the Constitution, it says 'all treaties made...under the authority of the United States shall be the supreme law of the land, and the judges in every state' -- I guess it means including Texas -- 'shall be bound thereby,'" Justice Breyer said.

The case may come down to the opinion of Justice Anthony Kennedy, who often strays from his conservative brethren to embrace the significance of international law. Justice Kennedy's questions didn't indicate full agreement with either side. A decision is expected by June.
Write to Jess Bravin at jess.bravin@wsj.com

The Wall Street Journal: Decisión del Supremo sobre integración racial en colegios empieza a surtir efectos en la sociedad

ROLLBACK

School Integration Efforts Face Renewed Opposition
Supreme Court RulingSways Milton Battle; Off to Private School

By JOSEPH PEREIRAOctober 11, 2007; Page A1
MILTON, Mass. -- Last spring, town officials in this affluent Boston suburb changed the elementary-school assignments for 38 streets -- and sparked outrage. Some white families had been reassigned to Tucker, a mostly black school which has historically had Milton's lowest test scores.

Among those reassigned is Kevin Keating, a white parent who is talking to lawyers about going to court to reverse the plan. I "just don't feel good putting [my son] in an inferior school," he says. His ammunition: the U.S. Supreme Court's June ruling that consideration of race in school assignments is unconstitutional. Without the backing of the Supreme Court, Mr. Keating says his effort wouldn't have "much of a standing."

AP
A segregated school in Summerton, S.C., in the early 1950s, shortly before the Supreme Court decision in Brown vs. Board of Education.

Five decades ago, federal courts began forcing reluctant districts to use race-based assignments to integrate schools. But in June, a bitterly divided Supreme Court reversed course, concluding that two race-based enrollment plans in Louisville, Ky., and Seattle were unconstitutional. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John Roberts declared.

Now, in an era when schools nationwide are becoming increasingly segregated, the ruling is affecting local school districts in ways large and small. Some districts are sidestepping the ruling by replacing measurements of race with household income. But many others, such as Milton, are adjusting their programs in the face of opposition that's been emboldened by the Supreme Court decision.

In Georgia, the Bibb County School District, which encompasses Macon, has decided to abandon a balancing plan between whites and minorities at one of its top magnet schools next year. A broader school-board redistricting plan aimed at promoting integration is facing a host of opposition, including a threat of legal action by a lawyer citing the Supreme Court decision.
The 58,000-student Tucson, Ariz., school district dropped its race-based assignment system after a federal court judge declared it unconstitutional in August, citing the Supreme Court case. Tucson is holding public hearings to gather parent opinion on assignment plans.

Parents have gone back to federal court seeking to reopen their challenge to a race-balancing plan in Lynn, Mass., another Boston suburb. They lost that case last year, but now are citing the Supreme Court ruling as grounds for a rehearing. An overturning of Lynn's program could lead to the dismantling of similar ones in more than 20 other school districts in Massachusetts, says Chester Darling, an attorney for the plaintiffs.

Push to Integrate
Although the push to integrate public schools is often associated with the civil-rights movement, these days many school administrators want to integrate schools for a more practical reason: to raise test scores. Studies show black and other minority students tend to perform better academically when they learn alongside white classmates. Districts face the threat of losing government funds if school test scores fail to meet a certain threshold.

But the Supreme Court's June ruling handed opponents powerful ammunition, and some experts say the ruling could further accelerate the resegregation of America's schools. While the famous 1954 Supreme Court ruling in Brown v. Board of Education concluded that racially segregated schools are "inherently unequal," a string of federal court decisions in the 1990s curbed desegregation plans. In 2004, 73% of black students nationwide attended schools where minorities were the majority, compared with 66% in 1991, according to the Civil Rights Project at the University of California at Los Angeles.

In 2000, a group of parents sued the Seattle school district because their white children were denied admission into certain popular schools. Officials at those schools had imposed a racial quota to reflect the district's racial composition. Three years later, a group of white parents sued the Louisville school district for basing admissions on a plan that aimed to maintain black enrollment at any school between 15 percent and 50 percent.

Constitutional Violation
In June, the Supreme Court ruled that in both cases -- Parents Involved in Community Schools v. Seattle School District No. 1 and Crystal D. Meredith v. Jefferson County Board of Education -- the student-assignment systems were in violation of the Constitution's Equal Protection Clause, which says that "No state shall...deny to any person within its jurisdiction the equal protection of the laws."

The battle of Milton pits the two opposing forces against each other. On one side was a vocal, strong-willed school administrator committed to integration. On the other were Milton's mostly white residents, who clamored to keep everything more or less as it was before.
Founded in 1664, Milton, just south of the Boston city line, is a town of 26,000. There are no malls or movie theaters, and about half the town is made up of conservation park land. The town, which is home to Massachusetts Gov. Deval Patrick and the prestigious Milton Academy boarding school, is an enclave of above-middle-class affluence with a per-capita household income of around $102,000 to $119,000.

Milton's black population is concentrated in the northwest section of town, sometimes referred to locally as "Miltonpan" because it adjoins Boston's predominantly black Mattapan neighborhood. The student body at Tucker elementary school, which serves this area, is 65% nonwhite, up from 51% seven years ago.

As the number of black students in Milton grew, so did concern about their lower relative performance to whites on state tests. Minority representation at the three other elementary schools in town, located in slightly more upscale, mostly white neighborhoods, averages about 17%. Test scores at these schools are generally 20% higher than those at Tucker.

Last summer, a group of parents started pressing school superintendent Magdalene Giffune to narrow the achievement gap. Dr. Giffune shared their concerns -- and believed the answer partly lay in better integrating Milton's schools. While 57% of Tucker's black students fell into the "needs improvement" category in fourth-grade English in the 2005-06 academic year, only 30% of black students attending the three other schools did.

There have been efforts to make the American educational system a fairer one for African-Americans and other minorities, but "the plain truth is that it isn't even-steven," says Dr. Giffune, a silvery-haired, 56-year-old whose voice carries traces of her New York origins.
It was a good time to reconsider school assignments. Tucker was overcrowded, and the district was nearing the end of a $150 million renovation project that will add new capacity at other schools. As last school year began, Milton school officials began discussing who would be going where this fall.

In December, the school board named a 24-member Student Assignment Committee, made up of parents, teachers and school officials. The next month, 600 parents responded to a district survey about their assignment priorities. While a majority of nonwhites ranked classroom diversity first or second on the list, a majority of whites ranked it last or second-last. White parents' first priority was having kids attend their neighborhood school -- the status quo.

At about that time, the Supreme Court held oral arguments. Milton school officials paid close attention, and realized the court was leaning toward striking down race-based assignments. As a result, the committee found itself trying to balance two seemingly opposing missions: improving diversity while also making its assignments "race neutral."

To do that, the committee devised three alternative plans, none of which required consideration of a student's racial background. The first, called the "consolidation" plan, called for grouping all second- through fifth-grade students together in a single campus. The second "sister schools" plan would also group children townwide in a slightly different arrangement.

A third choice, called "neighborhood schools," kept students at the four schools, but with different attendance boundaries.

Neighborhood Schools
During public meetings, parents outside the Tucker district heavily backed "neighborhood schools" -- the plan that would result in the least amount of integration. White parents whose children attended schools Cunningham and Collicot pointed out that many of them had voted for higher property taxes in ballot initiatives to pay for renovations at the schools. Opponents of the consolidation plan also frequently cited the then-pending Supreme Court case.

Tucker parents who favored the more-integrated consolidation plan included Karen Horan, an African-American former financial analyst on the assignment committee. "The greater good was for the children of the entire town to go to school together and learn how to get along with each other starting at kindergarten," she says.

In April, the school board sided with the white parents, voting 4-to-1 for the neighborhood school plan. Board Chairman Beirne Lovely, who was away on vacation at the time, said he would have sided with the majority, whose votes reflected "the overwhelming consensus of the community." The board also felt, he says, that the Supreme Court "was going to come down hard on the issue of not using race as a factor."

Dr. Giffune was disappointed with the board's decision. If it wasn't for the Supreme Court decision, Dr. Giffune says, diversity advocates like herself would have had "a bit more of a fighting chance to do the right thing....The Supreme Court really put us at a disadvantage."
To determine how many streets would be reassigned, school officials used a computer program that considered such factors as the addresses of children attending Milton public schools and school building capacities. In June, the school board voted on the 38 streets whose students would be reassigned to new schools. While the racial make-up of students was not considered, some in white neighborhoods were switched to Tucker. Some minority-heavy streets previously belonging to Tucker were switched to Glover, which is 87% white.

But the plan made the switch gradual. The assignments only applied to new students, allowing those already enrolled last year to stay where they were. Despite those efforts, Ms. Giffune says most of the white families reassigned to Tucker elected to send their children to private school instead.

One of them is Mr. Keating, a real-estate broker. His street abuts a pond and the town forest, and has newly built homes and well-manicured lawns. It had previously been assigned to the Cunningham School, which has a 20% minority enrollment, less than a third that of Tucker. From 2003 to 2006 test scores at Cunningham topped Tucker's by 8 to 24 percentage points.
Although he says his objections have nothing to do with any racial bias and that he supported consolidating the schools, Mr. Keating says the purpose of the reassignment is to make Tucker "a whiter school." "I'm just being used to fix the scores problem at Tucker, and I have a problem with that," he adds. "It's a townwide problem that a small neighborhood shouldn't be expected to shoulder."

Mr. Keating has been looking for other parents in his neighborhood to join him in seeking a restraining order from federal court to quash the reassignment plan. If successful, he says he might switch his child from private school back to Cunningham.

"We really feel vindicated in this struggle, especially with the Supreme Court fully behind us," he says.

Another critic living near Mr. Keating is Anthony Polimeno, a property manager whose daughter is due to enter kindergarten in 2009. He says he is "outraged" at the prospect of her having to go to Tucker. Mr. Polimeno says he checked out the school and "wasn't impressed." If the reassignment plan isn't stopped, he says, his options are to move to another town or send his daughter to private school. "Clearly the Supreme Court is saying one thing and our schools [in Milton] are doing just the exact opposite," he adds.

About 10 white parents interested in Milton's French immersion program also rejected Tucker for the upcoming school year, Dr. Giffune says. They had applied for the program at Glover, but because the program there was full, they were offered slots in the immersion program at Tucker, about a mile away. Most turned the offer down -- and two of the families opted for private schools, Dr. Giffune says.

The Bottom Line
The bottom line: There's been no change in Tucker's racial mix this year. School officials say that's largely because of the grandfathering exceptions in the redistricting plan, white rejection of the school and heavy minority enrollment.

The failure to mix more black and white students has left some black parents in town with bitter feelings. Average household income of the neighborhood that feeds Tucker is $102,000 -- not much lower than the whiter areas of town. "At all the town meetings...the feeling us folk from Tucker got from the rest of the town was, 'We don't want your kind,'" says Richard Fischer, an African-American investment adviser and a parent of three Tucker students.

Ms. Horan says she moved her family to Milton from Boston 10 years ago seeking open-minded neighbors, only to be confronted by the same prejudices that she had hoped to leave behind. "Hurtful as it is to admit, racism is alive and well and living in Milton," she says. Mr. Lovely, the board chairman, denies any racial tension.

Meanwhile Drew Echelson, Tucker's principal, says the school is moving to improve its academic performance. It's offering full-day kindergarten instead of the half-day offered at the other schools. The staff is visiting students' homes prior to the start of the new school year to encourage greater parental participation. Tucker teachers have formed a collaborative designed to boost teaching skills. Test scores for 2007 are already showing improvement.

Now in her last academic year before retirement, Dr. Giffune admits to leaving on a somber note. "I did the best I could but I feel I failed those kids at Tucker," she says. "Maybe I trusted the process and the goodness and idealism of everybody."
Write to Joseph Pereira at joe.pereira@wsj.com

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