Desegregation plan's intent could fuel challenge to Brown

It never ceases to amaze me how those who work hardest to squelch the basic survival of people of color and the disadvantaged cloak themselves in the mantle of the human rights they seek to deny. There are few better examples than in the June sch...

It never ceases to amaze me how those who work hardest to squelch the basic survival of people of color and the disadvantaged cloak themselves in the mantle of the human rights they seek to deny. There are few better examples than in the June school desegregation rulings of the Supreme Court, which emasculated Brown v. Board of Education while invoking the landmark decision that outlawed segregation in 1954.

By 5-4 rulings in Louisville and Seattle school cases at the end of the last term, the Roberts Court threw out those districts' remedies that had been successful in reversing school segregation. The court's reasoning, if it can be called that, was that race cannot be considered a factor in addressing racial disparities.

"Before Brown," Chief Justice John Roberts wrote for the razor-thin majority only partially joined by tiebreaker Justice Anthony Kennedy, "schoolchildren were told where they could and could not go to school based on the color of their skin."

But after Brown, Roberts ruled, you can't look at the race of schoolchildren if you want to determine if their schools are 99 percent black or 99 percent white, or even if you want to do something about disparities relevant to race.

That illogic aside, the court somehow still holds Brown sacrosanct. And because of that, it might be time for civil rights lawyers to try a different approach in fending off attacks against what little school integration exists in America. Instead of invoking the merits of diversity, why not re-argue the revered Brown verbatim and challenge the court, once and for all, to truly uphold or overturn it?


"[That] would be interesting," Ted Shaw, the director-counsel of the NAACP Legal Defense Fund, said after speaking to a group of black columnists at Philadelphia's Temple University on Oct. 9.

A successor to the job held by the late Thurgood Marshall when he argued Brown 13 years before his appointment to the court, Shaw agreed that the court's ultraconservative justices today would dismiss some aspects of the 1954 case -- specifically sociologist Kenneth Clark's studies on the harmful effects of segregation on black girls who preferred white dolls to black.

"[Justice Antonin] Scalia would boot that out of court," Shaw said. But he expressed doubt the court would go as far as to completely reverse Brown.

"At the end of the day," he concluded, "the court treats Brown as hallowed but has left it hollowed."

The musing aside, Shaw politely addressed my lack of legal training to say there would be no way to bring the case back to the court today.

"Washington v. Davis, in 1976, said you have to show intentional segregation. Without that, you wouldn't get to a Brown," he said.

In other words, Brown only addressed de jure -- or legally imposed -- segregation, not de facto school segregation based on the racial makeup of neighborhoods or housing patterns.

And that brings us to Duluth and Independent School District 709's red plan to reduce the city's high schools from three to two. In the initial plan, school officials drew a district boundary between the two schools at 14th Avenue East, creating a western Duluth high school with 16 percent minority and 44 percent low-income students. The east-side school would be 7 percent minority and 15 percent low-income.


Told by a multitude of individuals and groups that would be unacceptable, Superintendent Keith Dixon responded with a "left-right" plan, dividing the districts into a more truly geographic, and demographic, east-west split. The west-side school would then be 11 percent minority and 34 percent low-income; the east-side school would be 12 percent minority and 24 percent low income.

But for whatever reason, Dixon and the school district haven't definitively committed to the left-right plan. Instead, they submitted to the state Department of Education the 14th Avenue East boundary with some platitudes about "community input [to] finalize the precise locations of the middle/high school boundaries" and the "establishment of attendance boundaries and school populations, transportation or other means combined with school-specific programming to create a positive school culture."

That's just doublespeak. Either the district is interested in demographically balancing the schools or it isn't. And if it is, the left-right plan is the best model for achieving it. If Dixon and company continue to ignore it, what possible conclusion can be drawn from their actions other than that they're intentionally seeking to keep Duluth's schools segregated?

And that would give Ted Shaw the standard to re-argue Brown and the Roberts Court all the ammunition it needs to either uphold or get rid of it once and for all. If that happens, get ready to turn back the clock to the good old days of legalized segregation, second-class schools, back-of-the-bus yassuhing and so on.

Unless Dixon has other intentions.

Robin Washington is the News Tribune's editorial page editor and a commentator on public radio stations across the country.

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