Cases Retread Brown vs. Board of Education Steps

By David G. Savage
The Los Angeles Times

Monday 04 December 2006

The Supreme Court takes up two school integration disputes that could have far-reaching effects.

Washington - For the first time in a decade, the Supreme Court will revisit the legacy of a landmark: the Brown vs. Board of Education decision of 1954 that declared unconstitutional the racial segregation of public schools.

Separate schools for black and white children are "inherently unequal," Chief Justice Earl Warren said in an opinion that helped launch the civil rights movement.

State-enforced segregation laws are long gone, but for school officials today, a key question remains: Did the historic decision commit them to a policy of seeking integrated schools, or did it tell them not to assi'n students to a school based on their race?

Today, lawyers in a pair of integration cases will debate whether school boards may use racial guidelines to assign students. And both sides will rely on the Brown decision to make their case.

The outcome could affect hundreds of school systems across the nation, including the Los Angeles Unified School District.

With the arrival of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., civil rights lawyers believe there may be a five-member majority determined to strike down race-based integration programs.

In Seattle, the school board adopted a policy - now suspended - that gave "nonwhite" students an edge if they sought to enroll in a popular, mostly white high school. In Jefferson County, Ky., which includes Louisville, the school district said the black student body at each elementary school should range from 15% to 50%.

In both cities, several white parents sued to have the plans declared unconstitutional after their children were barred from enrolling in the school of their choice because of their race. Though they lost in the lower courts, the Supreme Court voted in June to hear their appeals, leading many to predict the justices are poised to outlaw "racial balancing" in the public schools.

"At its core, the issue here is the promise made 52 years ago in Brown vs. Board of Education," said Theodore Shaw, president of the NAACP Legal Defense Fund, which won the ruling that struck down racial segregation in the South. "Mandatory desegregation is now a thing of the past. All that's left is voluntary desegregation, and now that is being challenged."

Shaw said school officials should be lauded for their efforts to achieve integration. He said he was particularly troubled by "the ideology that equates any race consciousness with racial discrimination."

Domino Effect

Bush administration lawyers, who joined the case on the side of the parents, say the Brown decision sought to move the nation toward a color-blind policy. They say school officials may not open or close the door to particular students solely because of their race. In short, race-based decisions are racial discrimination, even if the officials are pursing a laudable goal, they say.

"The promise of this court's landmark decision in Brown ... was to achieve a system of determining admission to the public schools on a nonracial basis," U.S. Solicitor General Paul D. Clement wrote in his brief to the court. "Race-based school assignment does not advance that objective."

A ruling in favor of the parents could have broad effect. Hundreds of school districts across the nation are said to use racial guidelines in at least some of their schools.

About 54,000 students in Los Angeles Unified are enrolled in magnet schools, where spaces are allocated based on racial guidelines. An additional 3,500 students choose to be bused to another school under a second program that encourages integration. Both programs were adopted in 1981 after court-ordered busing came to an end.

Last year, these programs came under challenge in a lawsuit filed in the state courts. Pacific Legal Foundation sued, alleging the programs violated Proposition 209, the 1996 voter initiative that forbids state and local governments from giving "preferential treatment" to any person because of race.

A U.S. Supreme Court ruling striking down the integration policies in Seattle and Louisville could knock down those in Los Angeles as well.

"Our program is at risk. It is expressly race-based," said Kevin S. Reed, general counsel for Los Angeles Unified. "The program is working very well."

The district filed its own brief with the Supreme Court, urging the justices to uphold voluntary integration programs. Loss of the magnet program would be "devastating," its lawyers said. "Nearly 54,000 magnet students would be returned to their home schools. For the majority of those students, that would mean leaving a desegregated school and returning to a school segregated by the residential patterns" within the city of Los Angeles, they said.

But such a dire outcome is not certain, even if the court does rule for the parents in Seattle and Louisville. They are objecting because their children were turned away from a nearby school because of their race. A voluntary busing program that moved children from the city to a suburb, or from a low-income neighborhood to a more affluent one, would not be affected by a ruling striking "race-based assignment" policies.

Nonetheless, the lawyers who are challenging the school integration policies are confident the Supreme Court will agree with them.

Since 1990, the justices have insisted the government may not use "racial classifications" when awarding jobs, contracts or college scholarships. They also have voided congressional districts that shifted black voters with the aim of electing a black candidate. Last year, the court overturned a California prison policy that separated new inmates based on their race.

O'Connor Out, Alito In

There was one exception to this trend. In 2003, the court upheld an admissions policy at the University of Michigan Law School that gave an edge to black applicants. Speaking for a 5-4 majority, Justice Sandra Day O'Connor said race-based, affirmative-action rules for colleges could be justified as the only way to obtain diversity in higher education.

But O'Connor has since retired from the court.

And last month, Michigan voters essentially overturned the university's policy and outlawed "preferential treatment" based on race.

Now that Alito has taken O'Connor's seat, most conservatives are predicting a majority will vote to strike down school assignment policies based on race.

"I think the court will reject these programs and say this kind of racial counting and sorting doesn't make sense in 2006," said lawyer Roger Clegg, president of the Center for Equal Opportunity, a Virginia group that promotes "colorblind public policies."

Harry Korrell, the lawyer for the Seattle parents, also argues that the traditional black-and-white view of race is outdated in a racially diverse West Coast city. The race-based integration policy for Seattle's high schools resulted at most in "trivial changes in pigmentation diversity at a few already diverse schools," he said.

But the minimal impact of these policies could cut the other way.

In a widely quoted concurring opinion, Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals said Seattle's voluntary integration policy could be upheld because it did not involve a "racial stigma" or a preference for one race over the over. It "gives the American melting pot a stir without benefiting or burdening any particular group," Kozinski wrote.

Kozinski, an appointee of President Reagan, is also a former clerk to Justice Anthony M. Kennedy, the centrist who may well hold the deciding vote.

A decision is unlikely before the spring.

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