Fifty-two years have passed since the Supreme Court decided Brown v. Board of Education, but the constitutional issues presented by that historic case will not go away. Last week the Supreme Court agreed to return to them in cases involving the public schools of Washington state and Kentucky. Here we go again.
The litigants from Louisville inherited the ancestral ghosts that haunted their old Kentucky home. The city's legacy may not have brought the massive challenges that arose in the Deep South, but in 1975 the city's schools fell under federal decree requiring desegregation. Released from that supervision in 2000, the city now struggles for answers to the problems that freedom brings. For good or ill, the Louisville parents take their case to the Supreme Court straight from the U.S. District Court with only a cursory glance from the 6th Circuit.
The plaintiff parents in Seattle have no such litigious legacy to overcome. Over a period of many years, their schools simply drifted into a pattern of segregation by residential area. After the Brown case stunned the South in 1954, Seattle's city fathers came down with a case of the long-distance guilts. Life stirred in the National Association for the Advancement of Colored People and the American Civil Liberties Union. Civic leaders, black and white, embarked upon a high school program of racial realignment as a kind of belated expiation.
The city experimented with small-scale exchange programs in the 1960s. These well-intended efforts yielded to voluntary racial transfers. Then came a plan of school pairings. In 1988 a new plan of "controlled choice" was decreed. In 1994 the school board ordered yet another plan based upon diversity and choice. In 1998 came a constitutionally suspect plan of student assignment by tiebreaker. This is a city that has tried, with much evident success, to develop a school system substantially free of racial animus.
Seattle's current plan, now before the high court, seeks to make each of its 10 high schools unique and equally attractive. Judge Raymond C. Fisher, writing for six members of the 9th Circuit, commended the city's effort, but concluded that "nevertheless the high schools vary widely in desirability." Housing patterns in Seattle continue to be racially concentrated. As a consequence, "the threat of having to attend a racially concentrated or isolated school is not a theoretical or imagined problem." The city's need for the benefits of racial diversity in secondary education is clearly "compelling."
Judge Fisher spoke for the panel majority: "There is no more effective means than a consideration of race to achieve the solution. ... A narrowly tailored plan may explicitly take race into account."
Judge Alexander Kozinski concurred, though he found "something unreal" in his colleagues' effort to apply Supreme Court precedents to Seattle's struggle. "I hear the thud of square pegs being pounded into round holes." The city's plan, he acknowledged, suffers from none of the defects that bear a racist stigma. It seeks to promote integration. It carries none of the baggage the Supreme Court has found objectionable in other cases. In sum, the plan is not only constitutional, it is "eminently sensible."
Judge Carlos T. Bea disagreed. Joined by three colleagues, he filed a powerful dissenting opinion. The idea that children gain from a racially integrated education, he conceded, is a generally accepted notion. It is grounded in common sense; "but that is not the issue here." The issue is "whether this idea may be imposed by governmental coercion, rather than societal conviction; whether students and their parents may choose, or whether the government may choose for them."
A key part of Seattle's plan requires pupil assignment through a tiebreaking plan that operates "solely on the basis of the student's race." The district is thus engaged "in simple racial balancing, which the Equal Protection Clause forbids."
"The racial imbalance in Seattle's schools," said Judge Bea, "results not from de jure segregation nor from any invidious exclusion of nonwhite minorities from the schools. Instead, it results from racially imbalanced residential housing patterns, an issue which the district does not even contend it can alter. Hence the method chosen by the district to impose racially balanced schools is fatally flawed."
The two cases probably will be joined for oral argument early in January. Far beyond Seattle and Louisville, the whole country will be listening.