Integrated Education: A Dream Deferred

Bill Quigley

29 Aug 2007

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Integrated Education: A
Dream Deferred
by
Lewis M. Steel

"Our justices have taken what may be the final step in making
Brown obsolete."

This article first appeared in In These Times magazine.

On June 28, three years after the 50th anniversary of Brown v. Board of
Education, the U.S. Supreme Court subverted Brown's meaning to block public
school integration plans. As a result, boards of education across the country,
which have used racial criteria to reduce segregation, must undo their efforts
or themselves be branded as racial discriminators. Examining the role of the
courts and the role of movement activists and attorneys is essential to
understanding the history of this reversal.

The 1955 Brown decision came after a 20-year campaign of sustained litigation
that was supported by massive organizing and that was finally backed by a
Justice Department brief that argued segregation could cause the country to
lose its contest with the Soviet Union for the hearts and minds of the Third
World. Relying on the Equal Protection Clause of the 14^th Amendment,
which was passed after the Civil War to ensure former slaves equal rights, the
Supreme Court weakened state-enforced segregation in public settings through
Brown and a
series of subsequent cases.

Despite gains made in the South after Brown and as a result of intense pressure
from courageous civil rights activists, which led to the passage of federal
laws between 1964 and 1968, desegregation fell into full retreat mode. The
Court determined in 1974 that school segregation in the north was an acceptable
consequence of segregated housing patterns and geo-political boundaries.

"The Supreme Court weakened state-enforced segregation in public
settings through Brown and a series of subsequent cases."

Now, with their June 28 decision in Parents Involved in Community Schools v.
Seattle School District No.1, the our justices who comprise the Court's
right-wing bloc, with the concurrence of the more mainstream conservative Justice
Anthony Kennedy, have taken what may be the final step in making Brown
obsolete. The court condemned the modest attempts by the Seattle and Jefferson
County (Louisville), Ky., boards of education to voluntarily reduce segregation
by employing race-conscious integration plans. "Foul!" cried the
Supreme Court. The same Constitution and the same Brown decision--which, in
theory, required desegregation 53 years earlier - now required local boards of
education to maintain their segregated schools, unless they could shoehorn
themselves into the sliver of an opening for diversity that was provided by
Kennedy's decision.

Chief Justice John Roberts, writing for the majority, reviewed precedents from
the 1955 remedy phase of the Brown case (known as the second Brown
decision)-which created the insidious "all deliberate speed" formula
for desegregating southern schools--through the 2003 University of Michigan
cases, in which Justice Sandra Day O'Connor barely saved the consideration of
race as a means to increase diversity at the university level. According to
Roberts, educating children in a racially integrated environment and ensuring
non-white students' access to desirable schools was different, according to the
chief justice. "Racial balancing," or seeking to remedy "past
societal discrimination," was just another way of discriminating on the
basis of race.

To Justice Clarence Thomas, concurring with Roberts, arguments
in favor of integration were "faddish social theories." In his
dissent, Justice Stephen Breyer demonstrated that the difference between what
Roberts said was societally caused (de facto) segregation in Seattle and
Louisville and what Roberts said was governmentally caused (de jure)
segregation was not clear. Elements of governmentally caused and societal
segregation are invariably mixed. In any event, Breyer argued this distinction
only had meaning with regard to whether segregation violated the Constitution,
not whether boards of education could voluntarily integrate their schools.

Judge Kennedy's concurrence tried to slip in between the dueling justices. A
compelling interest to avoid racial isolation and to achieve integration to
create equal opportunity does exist, he wrote. And school administrators should
continue "the important work of bringing together students of different
racial, ethnic and economic backgrounds." But, he warned, they should not resort to racial classifications, and should consider instead such devices
as magnet schools and enriched academic programs. Straddling the two four-justice
camps, Kennedy's opinion becomes the controlling voice. To the dissenters and
the civil rights legal community, however, Kennedy did little more than invite
another round of endless litigation.

"Present-day racial discrimination and segregation are still
beyond the reach of the law, leaving millions subjected to the same
disadvantages and indignities that existed before the civil rights movement."

This tortured outcome raises a more important question than whether a few
public school boards may introduce a drop of integration into a sea of
segregation. Put simply, do the Court's negative decisions matter that much any
more? Present-day racial discrimination and segregation are still beyond the
reach (or at least the will) of the law, leaving millions subjected to the same
disadvantages and indignities that existed before the civil rights movement.
Life expectancy, imprisonment and unemployment rates as well as educational
levels all attest to the racial disparities. Traffic stops for "driving
while black" remain a commonplace experience, especially in white
neighborhoods.

Differing penalties and enforcement of drug laws have turned the
prisons
into racial holding pens and have eliminated the right to vote for a
significant percentage of the black population. The death penalty is
disproportionately imposed on people of color. Employers who reject job
applicants with "black names" do so with impunity. The real estate
industry continues its dodges to separate blacks from whites. Municipalities
place subsidized housing and environmentally hazardous projects in
neighborhoods of color, while underfunding their public schools, parks and
other publicly supported facilities.

"Differing penalties and enforcement of drug laws have
turned the prisons
into racial holding pens."

Ever since 1955, when the Court's second Brown decision negated the first
ruling's focus on equal educational opportunities, the Court has, with rare
exceptions, slowly but surely ignored or openly turned against meaningful
enforcement of the Fourteenth Amendment. In response, Robert L. Carter, a key
theoretician in the Brown case as well as the leader of the legal effort to
dismantle northern school segregation, criticized the Court for failing to
confront racial isolation.

Thurgood Marshall, after becoming a Supreme Court
justice, lambasted the majorities in the '70s cases that blocked the
desegregation of Detroit's schools and that allowed Texas to retain a financing
system that severely underfunded poor, mostly Latino and black schools. More
recently, the renowned NYU law professor and critical race theorist Derrick
Bell has argued that black Americans would have been far better off if the
Supreme Court had stuck with its 1896 "separate but equal" doctrine
and, instead of decrying school segregation in 1954, meaningfully enforced the
"but equal" portion of that ruling. According to Bell, black
communities then could have continued to build their infrastructures and fought
their way to equality.

Knowing the Court's equivocations, I am convinced it would not have enforced
equal funding for black communities. But Bell's point is that almost anything
would have been better than the Court's substitute for equality. Contrary to
its original intent, which conservative justices supposedly venerate, the 14^th
Amendment's Equal Protection Clause has been turned against black Americans. It has become whites' ticket into federal court,
successfully used by them to challenge school desegregation, oppose affirmative
action in awarding public contracts and limit minority access to public
employment. Even when Justice O'Connor cast the tie-breaking vote in the 2003
Michigan Law School case, she called its plan, which at best was an attempt to
level the playing field, a form of discrimination that perhaps could be
tolerated for only another 25 years.

What the Supreme Court has now done is merely extend the obstacles it has
placed in the path to equal opportunities. From a longer historical
perspective, one could say that since the Dred Scott decision before the Civil
War, a series of court rulings have time and again thwarted the struggle for
equal rights. Contrary to the June 29 New York Times editorial that
echoed the myth that the Supreme Court since Brown has been "the driving force for
integration" and has "never wavered," the justices have coddled
segregationists and given short shrift to meaningful concepts of equality.

"The court would not have
enforced equal funding for black communities."

Without the force of powerful constituencies giving urgency to their arguments,
civil rights lawyers' pleas for equality do little more than stir the creative
juices of those who use their legal skills to make a mockery of that concept.
Judges can always find a justification to leave things the way they are or turn
back the clock. And even when judges occasionally seek to alter the landscape,
they are prone to ignoring their own pronouncements.

Two years ago, I was a speaker at an Ohio State University Law School symposium
concerning post-Brown judicial struggles. People from the Columbus community
expressed their anger at the Ohio Supreme Court for not enforcing its own
decision requiring equal public school funding under the state constitution.
Three times, the court had failed to enforce its own decree, one man complained
bitterly. "What are you lawyers going to do about it?" he asked.
"This is the state capital, isn't it?" I replied. "Both the
court and the legislature sit here. Have you organized protests? What have you
done?" The answer, as far as I could tell, was very little.

Progressive forces still need civil rights lawyers to protect activists, help
expose injustices and move the law along when communities demand change and are
organized to fight for it. Even this most repressive Supreme Court decision,
with the Kennedy concurrence and the Breyer dissent, contains the possible
seeds of a more progressive future for public education. Well- funded magnet
schools and enriched academic programs can serve the needs of black as well as
white school children. But without sustained activism, this latest Supreme
Court decision will stand as a monument to the right-wing takeover of even the
verbiage of equality.

The justices have eyes and ears, as do those who appoint and confirm them.
Whether the Kennedy concurrence can be used as a wedge to open doors or will
become just another weak and forgotten voice depends upon the people who have a
stake in the outcome, which is all of us.

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