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Civil Rights Leaders Fear Chilling Affect of High Court Decision
By: Hazel Trice Edney
NNPA Editor-in-Chief
Originally posted 7/3/2007

WASHINGTON (NNPA) – It came as no surprise. Civil rights leaders had predicted it. Yet, they are dismayed at the U. S. Supreme Court’s 5-4 decision to limit the voluntary use of race in public school desegregation, undermining the spirit of Brown v. Board of Education.

“What the court did today is unfortunate. This is not a good day for our country,” says Ted Shaw, director-counsel of the NAACP Legal Defense and Education Fund outside the court last Thursday. “The court…walks away from both the spirit and the substance of Brown and in one fell swoop is overturning years of precedent.”

Shaw sought to make it clear that the ruling was not a complete overturn of race-conscious programs to desegregate. “The court did not, under any reading, ban all considerations of race in elementary and secondary school education…This decision today is a mile post, not an end point. This does not mean that we will be done with the issue of racial justice in this country.”

Shaw paraphrased the impassioned dissent of Justice Stephen G. Breyer.
“The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown,” Breyer wrote. “To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”

The opinion of the Court, rendered by stark conservative Chief Justice John G. Roberts Jr., said the court would allow the use of race when there is a “compelling interest” for racial integration, but the program has to be “narrowly tailored.” But, the court ruled that the Seattle and Jefferson Cases went too far.

“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again – even for very different reasons,” Roberts states. “For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis…is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The cases before the court were upheld as constitutional by federal appeals courts. The U. S. Court of Appeals for the Sixth Circuit in the Jefferson County, Kentucky case and the U. S. Court of Appeals for the Ninth Circuit in the Seattle case, ruled that the programs did not violate the Equal Protection Clause of the Fourteenth Amendment, meaning that race may be considered as a factor in the placement of students.

An adverse ruling by the reconstituted Supreme Court, however, could have the affect of overturning the desegregation mandates set forth in the 1954 Brown v. Board of Education of Topeka, Kansas.

Justice Kennedy, who voted with the majority, was less adamant than Roberts.
“The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds,” Kennedy states in a separate opinion. “Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.”

Civil rights leaders say they will fight back by pressing to elect a fair president. The president makes Supreme Court appointments, subject to the confirmation of the U. S. Senate.
But, Supreme Court appointments are for life. They only change in the cases of retirements, resignations or deaths.

“We, the members of the Congressional Black Caucus, 43 members from 23 states, representing 40 million Americans will speak out and to mobilize America that they vote that they change the seat that appoints the power that rules the Supreme Court,” says CBC Chairman Carolyn Cheeks Kilpatrick, who also joined the group of rights leaders outside the court. “Shame on the Court, Justice Thomas included,” she said of the lone Black on the court, an avowed conservative.

Harvard University law professor, Charles Ogletree, executive director of the Charles Hamilton Houston Institute for Race and Justice, said the court not only diminished the problem of segregation in public education that still exists but has possibly worsened the affects of racial segregation, such as low quality education.

“What it means is that today we are approving, at least in theory, the idea of separate and unequal education,” Ogletree says. “That is that this opinion will make Seattle not change. And Black students who can’t afford to live in other parts of the city will still go to lesser schools and White students to better schools. The same thing will happen in Louisville.”

An NAACP LDF statement explains the cases:

“Concerned about how these trends were affecting their own children and community, locally-elected school boards in Louisville and Seattle adopted student assignment measures to foster integrated, diverse schools,” says the statement.

“In doing so, they joined hundreds of other communities around the country that have also taken steps to see that children from different backgrounds learn to live, play, and solve problems together.”

Both the Louisville and Seattle lawsuits were filed by parents of White students who complained that their children weren't allowed to attend the schools of their choice.
Jefferson County's school-assignment program ensures that each school's enrollment is between 15 percent and 50 percent African-American. The aim of the Louisville plan is to diversify a school district that is 58 percent White and 36 percent African-American.

In Seattle, Kathleen Brose claims her daughter, Elisabeth, was separated from her friends in 2000 when she was denied her choice of a high school because she is White. In Jefferson County, the district used what they called a “tiebreaker” system by using race to determine where a student should be assigned.

Breyer vehemently argued that the school programs were well within the guidelines of earlier court rulings since Brown. He cited a 1971 case:

“School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to White students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities,” he quoted from Swann v. Charlotte-Mecklenburg Board of Education.

For months, tension over the new cases by civil rights leaders has been especially high because they perceive a shrinking window for the voluntary desegregation plans. Also were also anxious because swing voter Sandra Day O’Conner has retired from the court. Justices Clarence Thomas, Antonin Scalia, Samuel Alito and Roberts are the court’s most ardent conservatives. David Souter, Ruth Bater Ginsburg, Breyer and Justice John Paul Stephens are considered liberals. Rights leaders had hoped that Justice Anthony M. Kennedy would emerge as the court’s new swing voter. But, he did not. He joined the four conservatives, even while expressing reservations.
Some fear the ruling could send a chilling affect beyond school districts.

“Without the use of race in decision-making, polarized communities, poverty concentration, minimal corporate diversity, limited minority business initiatives and strangled affirmative action plans will become the norm,” says Gary Flowers, executive director of the Black Leadership Forum. “Civil rights advocates must now turn our attention to drafting legislation to protect minorities and women. It is only through legislation that Brown’s promise will remain.”

The small window appears not to be enough to prevent other successful challenges to school desegregation programs or to cause enough fear to prevent them from even getting started.

Breyer agrees:

“Many parents, white and black, alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation,” he writes. “Instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request. The plurality is wrong to do so.”

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