Metro legal director Jim Murphy issued Tuesday his anxiously awaited opinion on whether Metro’s controversial school desegregation plan can withstand a challenge in court. For proponents of the plan, the news is good.

Murphy says the plan, which would free Metro from a 40-year-old law suit, “should pass constitutional muster” if it is challenged in the courts. Now it remains for Metro Council to decide whether to approve the 12-cent property tax increase required to put the plan in action.

The proposed desegregation plan has been controversial—some have called it potentially litigious—because it allows for school assignment zones, drawn to ensure a racially diverse school system. Recent federal court rulings have looked askance at the notion of using race to determine much of anything. In Metro’s desegregation plan it helps determine where students attend school.

But Murphy’s crucial opinion states that, in drawing the zone lines, the Metro school board and the plaintiffs in Nashville’s desegregation case also relied on factors other than race. “The proposed zoning plan was based on both race-neutral and race-conscious criteria,” Murphy writes in his carefully worded, 34-page opinion.

In drawing the zone lines, Murphy finds, the school system considered non-racial criteria such as geographic convenience and a goal of having each student attend no more than three schools during his or her school career. “It is only when race is the predominant consideration in designing the zoning districts” that municipalities are most vulnerable to a successful court challenge, Murphy writes.

Although the legal director gives the desegregation a thumbs-up, he notes that some of the school system’s already existing policies might not survive court scrutiny. Specifically, he says the school system’s ongoing reliance on racial quotas to guarantee minority participation in Metro’s magnet schools “is of doubtful legality.” The use of quotas, he says, is an issue the Metro school board should address.

Currently Metro school board policy requires each magnet school to have a student population that is approximately 40 percent black and 60 percent non-black. “Strict numerical quotas are probably not constitutionally permissible,” Murphy writes in his opinion, although “other race-conscious approaches to achieve diversity and remedy past discrimination may be constitutionally valid.”

Mayor Phil Bredesen says he’s pleased with Murphy’s findings, saying that the desegregation plan got “about as close to a clean bill of health” as it could get.

Bredesen points out that the probably illegality of the magnet school quota system “really has nothing to do with the plan the Council is considering,” and can be easily corrected by the Metro school board devising other standards of admission.

Zoned in, zoned out

Assuming the 12 cent tax increase passes later this month, the school system will get more than a new zoning pattern. It will also get $206 million worth of capital improvements as well. The new zoning eliminates the most egregious cases of cross-town busing, but it still uses busing to achieve a number of goals—one of which is racially diverse student bodies. The proposed plan also gives magnet school students access to busing, something magnet school students don’t have.

Opponents of the desegregation plan argue that, if Nashville implements the plan, the entire system might find itself back in court facing charges that it still uses race to help determine where students go to school. School board member Murray Philip, the most vocal of the plan’s critics, has told the Scene that he may consider challenging the plan himself.

Philip has also complained that the new zoning pattern requires some students to be bused past schools close to home in order attend schools that are farther away. Murphy’s opinion addresses that concern as well.

“The right to a free public education has never been interpreted under either the United States Constitution or the Tennessee Constitution to provide a right to attend a particular school or the school that is geographically the closest to a student’s residence,” Murphy writes. “As long as substantially equal educational opportunity is provided, the assignment of students to a particular school is within the plenary discretion of the local school board.”

Attorneys for the school system and for the plaintiffs in the desegregation case have long contended, based on past court rulings, that the plan would likely pass judicial review.

Marian Harrison, attorney for the school board, has cited the U.S. Supreme Court’s 1971 ruling in Swann v. Charlotte-Mecklenburg Board of Education to defend the constitutionality of Metro’s desegregation plan. In that case, the Supreme Court ruled it was within the “broad, discretionary powers” of school boards to have a “prescribed ratio” of blacks and whites in public schools.

Like Murphy, Harrison has noted that racial diversity is not the only criterion used by proposed plan to determine school assignments. “There are a whole lot of other factors that cause the assignment plan to look like it does,” she told the Scene recently. The mix of criteria, along with the discretion granted to school boards by the Swann case, is “really the basis of our feeling that this is a constitutional plan,” Harrison said.

But still, even Murphy has conceded that it is not entirely clear whether the need for racial diversity is “compelling” enough to survive court scrutiny. In several recent cases, the U.S. Supreme Court has ruled that racial classifications can only be used if they survive “strict scrutiny,” the court’s most critical level of review.

Bredesen was clearly concerned about the situation. In fact, he made his proposal to fund the desegregation plan contingent upon receipt of “a legal opinion from either the Metro Legal Department or a disinterested outside attorney with suitable expertise that the proposed assignment plan is legal.” Now, he has the go ahead.

Ready defense

If Metro’s plan is funded and is then challenged in court, Murphy predicts, its attempts to achieve racial diversity can be defended because the zoning plan aims at achieving socioeconomic diversity as well. “The likelihood that a plaintiff could prove that the zoning plan was drawn with race as the predominant consideration is remote,” Murphy writes, “because the assignments that may appear race-based can be explained on race-neutral grounds.”

Murphy also points to a ruling last week in Boston by U.S. District Judge Joseph L. Tauro, who found that race-sensitive admissions policies in that city are legal. Although Tauro’s opinion contradicts those of federal judges who have ruled against affirmative-action-oriented policies, Murphy notes that the Boston court “found racial diversity in the Boston public schools served a compelling governmental interest.”

Murray Philip concedes that Murphy is “right that in terms of existing case law” diversity can be defended as a criterion for school assignment. But he also notes that no sooner was Tauro’s ruling released than the plaintiff’s attorney filed an appeal.

Attorney Michael McLaughlin, who’s challenging the Boston school system’s use of race to determine admissions policies, says he filed an appeal within 25 minutes of last week’s ruling. McLaughlin says he’s gotten calls from all over the country about the case, which some predict may ultimately go to the U.S. Supreme Court.

“I hope the two sides go all the way [to the Supreme Court], and put this issue to rest,” Robert Guen, a former Boston School Committee member told the Boston Globe this week.