The United
States Supreme Court ruled last week that public education
officials may not
use race to achieve integration
in public schools. Yes, you heard it right. After 52 years, the
high Court reversed itself on the venerable case of Brown v.
Board of Education, five separate cases consolidated under one
oral argument—then called “the Segregation cases.” In
1954, the U.S. Supreme Court ruled that segregated school systems
were inherently separate and unequal and thus unconstitutional.
A year later, they put forth the implementation order, under
a “With All Deliberate Speed” decree to desegregate
which took all of two decades in some parts of the country.
To end the Massive Resistance
(a whole organized movement in 11 states), the Court ultimately
was forced to
take control of
many school districts throughout the nation and put in place “integration
plans” to achieve racial balance. While many of the southern
school districts successfully desegregated, many northern school
districts, including Los Angeles, Boston and Detroit never achieved
racial balance and had to resort to volunteer plans. Those haven’t
worked either. The few school districts that had worked out suitable
policy methods to achieve racial balance had their policies challenge
under the nation’s “colorblind” culture. Once
considered off-limits, Brown has stood the test of time, holding
even in the most adverse reverse discrimination cases of Bakke
v. University of California Board of Regents in 1978 and Gutter
v. Bollinger in the challenges to the University of Michigan’s
Law School in 2003. No high Court since the Warren Court, that
delivered the decision in 1969, had the nerve to attack the Brown
precedent. Not even the Rehnquist Court had the audacity to openly
confront Brown’s legal standing. Now in 2007, Brown’s
reign as the holding legal precedent on race policy may be over.
In two separate school cases—in Seattle, Washington and
Louisville, Kentucky—in what could be called “the
Integration Cases,” The Supreme Court ruled that school
districts could not uphold integration policies that put a child’s
equal to attend home schools ahead of diversity. The challenge
here was that white students in each case were preventing from
attending the schools of their choice. Their exclusion from their
home district schools, because other minority were included by
district policies, violated to 14th Amendment’s equal protection
clause, the Court said. The same legal premise that was used
to uphold cases in California, Texas and Michigan-but acknowledged
Brown and the institution’s right to include the historically
discriminated, dismissed Brown in the Seattle and Louisville
cases, except to say that the legacy of Brown called for the
elimination of school based assignment based on race. That was
not the legacy, nor the intent of Brown. The legacy of Brown
was the elimination of disparate schools based on disparate resources
that were tied to race. Black children didn’t want to go
to white schools just because they were white. They wanted to
go the schools that were better resourced than theirs, and coincidentally
happened to be white—which of course, their parents knew,
the school districts knew and the Courts knew.
Justice Steven Breyer in his
dissenting opinion called Brown the U.S. Supreme Court’s “finest hour,” but
acknowledged that the mission of racial equality has yet to be
fulfilled. America is the world’s most racial nation, but
always wants to run from its race realities—largely because
it never wants to face up to its racial past. Brown made America
acknowledge its racial past, and its intent was to help the nation
correct it. But the nation has continued to run from it by avoiding
race or any type of race consciousness policies that makes it
face up to its past. Now the relativist politic that dominated
the executive and legislative branches and said race no longer
mattered now has found traction in the high Court. Without legal
standing, we now know America never intends to address its racial
divide. America has never done anything on a volunteer basis,
particularly regarding race.
The clock has been officially
turned back as the Supreme Court voted 5-4 to eliminate “race-conscious measures” to
enforce diversity. And as conservatives did with King’s “I
have a dream speech’s” line on people being judged
not by the color of their skins but the content of their character,
Chief Justice John Roberts added insult to injury by citing Brown
as case law in banning race in the use of school assignments.
Associate Justice John Paul Stevens called Robert’s opinion
in evoking Brown as a justification of the Court’s majority
holding, a “cruel irony.” An even crueler irony is
that, once again, “Uncle Clarence” Thomas, probably
the most significant beneficiary of the intent of Brown on the
high Court—an admitted beneficiary of affirmative action,
and a resident of Virginia whose anti-miscegenation laws were
overturned by the Lovings decision that was based on Brown’s
anti-separation, full equality case law forty years ago in 1967,
which wouldn’t have allowed Thomas to date a white woman
much less marry one, sided with the majority (again).
Though the post decision analysis
posits Justice Anthony Kennedy as the swing vote in this new
decision,
because he concurred
on a different principle that suggested the Brown principle of
bringing students together and the important work of achieving
diversity should not be abandoned, we know that Clarence Thomas
continues to be the biggest betrayer of the legal entrustment
of the Courts protecting Blacks’ fifty year fight for real
equality, and continues to be a leading voice, as silent as he
is, in the deconstruction of the gains of the most significant
social movement America ever saw. Still, we believed that not
even this “toming” Thomas would be fool enough to
attack the case law enabled him to get to the U.S. Supreme Court.
How wrong we were.
Still, there is optimism in
ashes of the house we once knew as the indefeatable Brown case.
Brown scholar,
and legal theorist,
Charles Ogletree, the curator of the memory of the architect
of Brown, as Executive Director of the Charles Hamilton Houston
Institute for Race and Justice at Harvard Law School, wrote an
Op-Ed piece in the Boston Globe a day after the decision that
said “Brown’s legacy lives, But barely.” Understand
the colorblind politic that drives our society. The door has
been cracked for every school district that has an integration
plan to now challenge it. If we think that voluntary integration
will occur, at a critical time when resegregation is the order
of the day all over the nation, then we haven’t done a
very good job of studying America’s racial past.
It’s safe to say, at least for the time being, that the “All
Deliberate Speed” order of Brown II that had slowed to
a crawl in the past twenty-five years-but was still moving, has
come to a stop.
BC Columnist
Dr. Anthony Asadullah Samad is a national columnist, managing
director of the Urban
Issues Forum and author of the upcoming book, Saving
The Race: Empowerment Through Wisdom. His Website is AnthonySamad.com. Click
here to contact Dr. Samad. |