A half-century after Brown vs. Board of Education, it's come, amazingly, to this: The Supreme Court, in the name of preventing race discrimination, is being asked to stop local schools from voluntarily adopting plans to promote integration.
Even more amazingly, the federal government - a government that sided with the black schoolchildren in Brown and has spent years helping enforce the court's desegregation decree - has entered the case on the side of white parents challenging the plans.
Thurgood Marshall must be spinning in his grave.
This perverse notion of constitutional rights would mean that the guarantee of equal protection makes it harder, not easier, to integrate schools. As Jack Greenberg, Marshall's co-counsel in Brown, put it in a recent friend-of-the-court brief, the justices are being urged "to hold, in effect, that integration and segregation are equally offensive to the Fourteenth Amendment insofar as they involve any consideration of race."
It's a measure of how far we have come from the lessons and promise of Brown, and how inured we have become to a Justice Department hostile to civil rights, that the administration's intervention in these cases - it will argue before the court on Monday - has not generated more outrage.
Public schools are less integrated today than they were in 1970. In the South, many school systems, once segregated by law, have been freed from court oversight and, with the return to neighborhood schools, have reverted to their former state. The percentage of black children attending schools that are mostly minority increased from 66 percent in 1991 to 73 percent in 2003, according to the Harvard Civil Rights Project.
Communities trying to do better than this should be celebrated, not sued.
The cases before the court involve school systems in Seattle and Louisville. Their plans differ - Seattle's affected only high school assignments, Louisville's involved elementary through high school - but they share common characteristics: They offer children a choice of schools and give weight to factors such as geographic proximity and sibling attendance. Race comes up only when a particular school's racial balance is far out of line with the city's student body as a whole.
This is not the kind of invidious discrimination that is at the core of the Supreme Court's aversion to racial classifications. As federal appeals court Judge Alex Kozinski, a Reagan appointee, wrote in the Seattle case: "No race is turned away from government service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability."
Strikingly, Louisville was under court order to remedy intentional segregation in its schools from 1973 until 2000 - at which point the Clinton Justice Department, arguing that the system hadn't yet eradicated the traces of its former discriminatory system, opposed freeing the district from court supervision.
Now President Bush's Justice Department argues against giving Louisville flexibility to ensure that its schools don't spring back to their previous state of racial isolation. Under this upside-down logic, a school system that is under court order one day to use race-based remedies finds itself barred the next day from doing anything race-based to prevent its schools from reverting to segregated patterns. What happened to respect for local control of schools?
The administration's position flies in the face of five decades of federal education policy, enshrined most recently in the No Child Left Behind law. For years the federal government has given money to schools, including money for programs that explicitly take race into account in making school assignments, to encourage efforts at integration.
And for good reason: Students - and ultimately society - benefit when black children and white children go to school together. These cases don't present the harder, zero-sum issues of affirmative action; no one's being denied admission. Indeed, creating more integrated public schools could help bring about the day when affirmative action in higher education is no longer critical to ensuring a diverse student body.
There are grounds for nervousness about what the court is up to. Justice Sandra Day O'Connor, the fifth vote to uphold affirmative action in higher education, is gone; two new conservative justices are on the court. The justices reached out to take the cases even though all three circuits that have considered the issue upheld the constitutionality of such plans.
What's needed here is a dollop of Kozinskian common sense - for the court to approve an approach that, in the judge's words, "gives the American melting pot a healthy stir without benefitting or burdening any particular group." The Supreme Court shouldn't take away the school systems' spoon.
Ruth Marcus is a member of the Washington Post's editorial page staff.
2006, Washington Post