Decades later, civil rights gains may be lost in court

A pair of cases recently argued before the Supreme Court brings us to a rather inglorious moment in history.

It seems unreal, after the laudable legal progress of the past 50 years, that we must gird ourselves for losing the civil rights gains made after the Brown v. Board of Education decision — or, at least, the spirit of the decision.

In the new cases before the High Court — Parents Involved in Community Schools v. Seattle and Meredith v. Jefferson County Board of Education — the justices will decide as early as this spring whether or not school districts may employ policies specifically designed to achieve racially diverse schools. Local educators in Louisville, Ky., and Seattle had developed their desegregation policies voluntarily, without a court order, on the correct belief that racial diversity holds benefits for their students and their communities.

Specifically, the educators in Louisville and Seattle sought to achieve racially mixed schools by allowing parents choices about where to send their children to school. In some rare cases, a child’s first choice of school might be denied if his or her enrollment upset the racial balance. Conservative advocates then took on the cause of a handful of parents whose children had been denied their first choices and sued in federal court.

The federal courts, however, consistently decided in favor of the school districts. In the original U.S. District Court decision in the Louisville case, Chief Judge John G. Heyburn wrote that “integrated schools, better academic performance, appreciation for our diverse heritage and stronger, more competitive public schools are consistent with the central values and themes of American culture.”

Similarly, in the Seattle case, Judge Alex Kozinski, a Reagan appointee, pointed out that the district’s voluntary choice plan “is not meant to oppress minorities, nor does it have that effect ... The plan does not segregate the races; to the contrary, it seeks to promote integration.”

It’s crucial to understand, here, that school districts such as Seattle and Louisville have been left with few options for achieving the integrated schools of which Judges Heyburn and Kozinski approve. This is because since 1974, beginning with the Supreme Court’s 5 to 4 decision in the case of Milliken v. Bradley, federal courts have been limiting Brown’s power and reach.

Milliken effectively prevented many northern urban school districts, where the pool of white students was already small and shrinking, from crafting desegregation plans to include predominantly white suburbs. This meant that up north, racially integrated education would be nearly impossible to achieve. Justice Thurgood Marshall penned an eloquent, angry dissent.

“We deal here with the right of all our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future ... Unless our children begin to learn together, there is little hope that our people will ever learn to live together.”

More recently, a series of High Court decisions have limited the manner in which racial segregation could be ameliorated, while eliminating or shortening the duration of court-ordered desegregation. Public schools are now more segregated now than they were when Marshall wrote his dissent in 1974.

According to the Civil Rights Project at Harvard, the proportion of black children attending predominantly minority schools increased from 66 percent in 1991 to 73 percent in 2003. In the South, especially, districts that had been legally segregated under Brown have been released from court order and quite rapidly re-segregated. In other words, more than a half-century after Brown, too many school districts look exactly as they did during the shameful pre-Brown period in history in which intentional segregation was perfectly legal.

Meanwhile, as courts backed away from desegregation as a route to equal education, educators on the ground became increasingly convinced of diversity’s educational benefits and segregation’s harms. Hundreds of socially concerned educators across the nation, including officials in Louisville and Seattle, consciously worked to reach for Brown’s aspiration through voluntary means.

“We don’t want to go backwards,” Francis Mellen, the attorney for the Louisville Schools, told the Supreme Court during the Dec. 4, 2006 oral arguments. “We have a voluntary plan and we think it works.”

I attended these oral arguments. Walking into the Supreme Court building, I was heartened by the chants along First Street Northeast, emanating from a crowd of young people, parents, teachers and activists. They’d gathered below the Supreme Court steps in cold, windy weather to voice their support for policies that help the nation achieve racially diverse schools. High school and college students from across the country had ridden buses to march from the Supreme Court to the Lincoln Memorial, where they’d listen to speeches, hold signs reading “Save Brown v. Board of Education,” and “Integrate, Don’t Segregate.”

But about two hours later, in the Supreme Court, I listened to the justices ask the lawyers in the case some telling questions. The arguments were wrapping up. The hopefulness I’d felt looking out at that vital, youthful civil rights gathering faded away.

It’s no surprise that the conservative members of the High Court expressed skepticism about the school districts’ attempts to achieve diversity. But most dispiriting was that the potential swing vote, Justice Anthony Kennedy, also revealed his distaste for the school districts’ policies. To hear Justice Kennedy express dismay not with the goal of racial diversity per se, but with the particular means by which it’s being achieved — that is, by taking race into account in school assignments — seemed to seal Brown’s fate.

All this leads me to predict, sadly, that the High Court might very well abandon the aspiration of integration and equal life chances manifest in Brown and in the civil rights movement Americans hold so dear. I hope I’m wrong. But I suspect that in years to come, we in the civil rights community will be mourning Brown, even while the nation, at least in its heart, continues to celebrate it.

By now, we know that far too many children of color begin a tragic journey in segregated, impoverished schools that ends in juvenile halls and adult prisons. Young people of color traveling through this school-to-prison pipeline are too often taught by unqualified teachers in overburdened schools, forced to learn substandard curriculum, tested on material they weren’t ever taught, held back in grade, removed to separate and inadequate special education programs, suspended, expelled and even arrested for relatively minor offenses.

Black and Latino youth are, in fact, far more likely than their white counterparts to be suspended, expelled, placed in special education classes and assigned to so-called “alternative” schools of poor academic quality. Only about half of the nation’s black, Latino and American Indian students even graduate from high school on time, compared with 78 percent of whites. In many of the nation’s large urban districts, serving overwhelmingly minority student bodies, average high school graduation rates drop into the 30 to 40 percent range.

Those of us concerned about the future of civil rights can no longer afford to work in separated, isolated spheres. More than ever, it’s vital that we come together, united in developing a clear strategy that addresses social inequities in every structure and segment of society — schooling, public health, criminal justice, voting, community enfranchisement. Then, it’s imperative that we, step by step, put in place the building blocks for a grand, workable strategy that will enhance the work of people on the ground in communities just as much as it will improve the arguments of civil rights litigators in the courtrooms.

Schoolteachers, for example, deeply understand the nature of children’s lives and can inform the work of civil rights litigators and juvenile court judges. Meanwhile, scholars can inform the work of probation officers or activists working to develop an employment center for former prisoners returning home. Youths caught in a juvenile justice system have something to teach policymakers and the civil rights litigators hoping to help them.

As the long desegregation struggle demonstrates, the well-trod avenues of federal court seem increasingly closed to us. We must attack the problem of inequality and second-class citizenship of racial minorities on other fronts — in the classrooms, in the courtrooms, in employment training centers, on the streets; in Congress and state legislature, in public forums, over the airwaves and on the pages of newspapers.

We still face a long, uphill climb.

But remember the obstacles that Charles Hamilton Houston, the legal architect of the Brown decision who trained Marshall and scores of other civil rights attorneys, faced in the 1930s were daunting, too. The national economy was failing. The NAACP had been formed, but there was no groundswell, no popular movement fighting for the rights of blacks. There were no legal precedents to bolster Houston’s social justice orientation. Indeed, as the journalist Richard Kluger writes in his book “Simple Justice”: “At a moment when the national economy began falling apart and [African Americans], scarcely the beneficiary of America’s bounty even in good times, [were] viewed as more expendable than ever, only a fool or a man of extraordinary determination would have undertaken the battle for racial justice. Charles Houston was no fool.”

History reminds us, then, that even in the face of the same defeat that very well may get handed to us this spring by the Supreme Court, Houston, his students and his colleagues would have kept working, thinking, acting and looking for that new road to equality. Houston wouldn’t have given up until he found an opening, no matter how small. Neither should we.

Charles J. Ogletree Jr. is a noted civil rights attorney and professor of law at Harvard Law School. He is the author of “All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education.” This editorial is an excerpt from an upcoming article scheduled to be published in Crisis magazine.