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CHARLES J. OGLETREE JR.

Brown's legacy lives, but barely

YESTERDAY, the US Supreme Court issued its long-anticipated decision about the constitutionality of policies in Seattle and Louisville that promote racial integration in schools. In a decision that can best be characterized as deeply divided, the court struck down these school districts' plans, concluding that they violated some students' right to equal protection, yet left open the opportunity for school districts to use some race-conscious measures to combat racial segregation. A majority of justices affirmed long-held principles that achieving racial diversity and avoiding racial isolation in schools are compelling state interests.

While this decision is neither as damaging nor as far-reaching as many feared it might be, there is no cause for celebration. This ruling removed a successful tool for combating the racial segregation that is a ubiquitous feature of the nation's public schools. Its immediate effect will be to require local educators to refine their voluntary school desegregation plans. It should not prevent school districts from undertaking new plans designed to ameliorate racial segregation.

As Justice Stephen Breyer wrote in his blistering dissent, this decision "upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict." Judge John Paul Stevens went further, noting the "cruel irony" in the majority opinion's evocation of Brown v. the Board of Education as justification for its position, proclaiming that "it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

In fact, the perplexing nature of this decision becomes clear when considered in light of rulings from lower-court judges. Judge Alex Kozinski, a conservative member of the 9th Circuit Court of Appeals, ruled earlier in favor of the Seattle plan, noting that it "does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. . . . The program does not use race as a criterion, but only to ensure that the population of each public school roughly reflects the city's racial composition."

Closer to home, the First Circuit in Comfort v. Lynn ruled in favor of the school district's plan, determining it did not violate the 14th amendment precisely because it was designed to be inclusive, rather than to exclude. In affirming the "compelling interest" of racially diverse schools, Chief Justice Michael Boudin wrote: ". . . the negative consequences of racial isolation that Lynn seeks to avoid and the benefits of diversity that it hopes to achieve are rooted in the same central idea: that all students are better off in racially diverse schools." The Supreme Court left the decision undisturbed.

If the fractured nature of yesterday's 5-to-4 decision was hardly unexpected, Justice Anthony Kennedy's concurring opinion does contain some small, and welcome, affirmation of the principles it articulated 53 years ago in Brown v. Board of Education. While agreeing with the majority that the plans illegally used race to classify students, he nonetheless stressed that "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's opinion refuses to embrace the four-person plurality view that race cannot be considered in seeking to achieve educational equality. Now it is up to lawyers, civil rights and educational advocates, school districts, and school boards to craft original, creative, and constitutional remedies to combat racial isolation and foster diversity in schools and neighborhoods.

Many people across this nation who are participating in the voluntary school desegregation program, METCO, have internalized Brown v. Board of Education's values. They have experienced the benefits of racially diverse classrooms.

Historian George Packer once wrote: "We will have a more just society as soon as we want one. Throughout American history this desire keeps rising to the surface, even at the unlikeliest moment."

We find ourselves at such a moment. The unfortunate, but perhaps empowering, lesson of these rulings is that it will be up to the people, collectively, to determine what sort of schools we maintain and what moral lessons to teach there. Only time will tell whether the principles embraced in Brown continue to guide us in achieving racial integration, diversity, and equal opportunity in quality education.

Charles J. Ogletree Jr. is a professor at Harvard Law School and founding and executive director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

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