A Sliver of Hope

The Supreme Court is divided not merely over how to interpret the Constitution. It’s divided over the meaning of American history.

By Ellis Cose

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It was a dream that defined a movement: government, which had done so much to keep the races apart, would bring them together. That dream predated Dr. Martin Luther King’s famous 1963 speech. It even predated Brown v. Board of Education, the 1954 Supreme Court decision that paved the way for the end of state-mandated segregation. Thursday’s Supreme Court ruling—a 5-4 decision outlawing voluntary school-desegregation plans in Seattle and Louisville, Ky.—did not kill that dream, but it left the prospect of its realization murkier than ever.

ALL is not lost. “We got rained on today, but there’s a silver lining,” Theodore Shaw, president of the NAACP Legal Defense and Educational Fund, tells NEWSWEEK. That lining came in the form of a concurring opinion from Justice Anthony Kennedy, who has taken over Sandra Day O’Connor’s role as the court’s swing vote. Kennedy typically swings more conservative than O’Connor; and, as was expected, he agreed with the conservative majority this time. But he could not accept some of the assumptions in the decision authored by Chief Justice John G. Roberts.

As Kennedy made clear in his own opinion, he was uncomfortable with his conservative colleagues’ acceptance of  “de facto resegregation,” as he was with the idea that the state was barred from making racial distinctions in the pursuit of educational equality. Nor was he happy with their approach to the equal-protection clause of the 14th Amendment, which was passed after the Civil War to protect the rights of emancipated slaves. “This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children,” argued Kennedy. “A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.”

Shaw and his liberal allies saw in those words a sliver of hope. They left “alive the possibility of school districts attempting to desegregate their schools,” says Shaw. The ACLU and the Equal Justice Society issued statements making much the same point. Kimberly Thomas Rapp, director of law and public policy for the society, declared: “Although the court struck down the specific school integration plans, a majority of the justices recognize and acknowledge that educational diversity and eliminating segregation in all its divisive forms remains a compelling governmental interest.”

It’s not clear at this point what kind of desegregation plan could withstand court scrutiny. It’s divided not merely over how to interpret the Consitution, but over the meaning of America’s history, over where we are as a society, and over how, or whether, to pursue the goal of racial equality. Those divisions mirror divisions in society itself. Roberts and his allies argue that history doesn’t much matter: discrimination in the service of addressing a legacy of racism is impermissible. Government should not be in the business, they say, of favoring ethnic minorities, even if those minorities suffered discrimination once upon a time. Indeed, Clarence Thomas equates today’s advocates of race-conscious remedies with segregationists of the past—a view that liberals on and outside the court find outlandish.

Whatever one thinks of the efficacy of desegregation, it seems clear that the level of integration declines when the state abandons desegregation efforts. An amicus brief filed by 553 social scientists noted that “school districts that have eliminated race as a consideration in student assignment policies have experienced resegregation.” Gary Orfield, codirector of the Civil Rights Project at UCLA, tells NEWSWEEK that the result of resegregation is far from race-neutral. “Blacks and Latinos end up in neighborhood schools that are inferior, with fewer curriculum choices, lower graduation rates and less experienced teachers,” he says. Based on his research, Orfield has no doubt that Louisville’s school system will end up more segregated—and that black students will pay a price—when the desegregation program ends.

Those who believe racial classification is evil are unimpressed with such research. They argue that desegregation is not a panacea for minority students; better ways can be found to help them, they say. Ward Connerly, who led successful efforts to abolish government affirmative action in California, Washington state and Michigan, tells NEWSWEEK he was pleased with the court’s position. “This decision keeps moving us inexorably in the direction of purging race out of the body politic,” he says. “While a victory for our side, it is not a total victory in my view.” A total victory, as he sees it, eliminates race from government altogether. It removes the option of the state ever using the rationale of a “compelling interest” to treat members of one race differently.

Thurgood Marshall, who headed the NAACP’s legal division at the time of Brown, had no idea Americans still would be arguing over desegregation more than half a century after his Supreme Court victory. At the time, giddy with excitement, Marshall predicted that America’s schools would be totally integrated in five years. Marshall, who, of course, went on to become a Supreme Court justice, lived long enough to eat his words. He became a stauch advocate for the policies that the Roberts court may end. If it does, will it also end the dream of equality for inner-city blacks, and a growing underclass of Latinos, who seem trapped in the underbelly of American society? Not necessarily, says Connerly, who argues that the solution lies not in busing a handful of blacks to majority-white schools, but in “improving the quality of neighborhood schools” for poor minorities.

Perhaps he has a point; but most of those fighting to end what they see as discrimination by the state don’t seem that interested in battling to increase educational opportunities for those marginalized—at least in part—because of ethnicity and race. Their job will be done, they seem to feel, when they have eliminated any acknowledgement of race from the public sphere. There is a possibility they will succeed—and one day wake up to find that they have increased the very racial divisions they had hoped to erase.