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The Honolulu Advertiser
Posted on: Tuesday, July 3, 2007

COMMENTARY
Ruling drives stake in heart of desegregation

By Marcus Daniel

The decision handed down by the U.S. Supreme Court on Thursday, barring Louisville and Seattle from ensuring the racial integration of their public school systems, may be the most important decision made by the court in years and promises, indeed seeks, to change the racial landscape of the United States.

By ruling that race has no place in the regulation of school admissions, the court has driven a stake through the heart of efforts to desegregate, and prevent the resegregation of, American public schools. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" wrote Chief Justice John Roberts in the conclusion to his majority opinion. If only it were that simple.

But it's not. As Justice Stephen Breyer argued in his passionate and principled dissent, the reasoning behind the court's decision undermines the spirit of the 1954 Brown v. Board of Education decision (which sought a racially integrated school system and society), while mockingly preserving its legal form.

Indeed, Chief Justice Roberts cites Brown in the majority opinion as a precedent for eliminating all racial considerations from school admissions, more or less explicitly comparing Breyer and those in dissent to the segregationists who opposed Brown. In the topsy-turvy legal world of the Roberts court, arguments in favor of integration are segregationist, while arguments that permit segregation are couched in ringing declarations of equality and color blindness. Such is the result of the majority's legal myopia and willful ignorance about the history and nature of American racism.

None of this is new. The justification for the majority decision is found in the equal protection clause of the 14th Amendment to the Constitution, the clause passed to protect African-Americans against the civil and legal disabilities imposed on them by white Americans.

Adhering narrowly to this amendment, Roberts and Co. argued that the Constitution is colorblind, that recognition of color difference is a violation of the Constitution, and that therefore school plans that took into account color were unconstitutional. It is a compelling argument, but one that bears an eerie familiarity to an older argument.

In a decision by the Supreme Court in 1896, Plessy v. Ferguson, the court used a similarly abstract logic to argue that segregation statutes that separated black from white were constitutional as long as they applied equally to all, and that the court had no business regulating the racial practices of American society.

Its duty was only to decide whether the principle of legal equality had been observed, and segregation statutes met that test because they applied to all citizens equally. Hence the doctrine of "separate but equal" became part of our basic law. Equality was used by the Plessy court to justify segregation, now it is used by the Roberts court to prevent desegregation.

Brown v. Board of Education was important not only because it began the integration of public education but because it struck down the legal principle of "separate but equal," sparking a civil rights movement that swept Jim Crow segregation into the ash heap of history.

The decision of the Roberts court moves us unmistakably back toward the world of Plessy v. Ferguson, a world of narrow constitutional formalism where legal decisions are made in defiance of obvious facts, in this case the growing de facto segregation of American public schools, and the racial realities of American society.

It is obscene for Roberts and the majority to cite and defend Brown v. Board of Education as they gut its central intention: to reverse years of racial segregation and discrimination against African-American children and citizens.

One of the plaintiff's lawyers let the cat out of the bag. Americans, he argued, ought not to worry about whether black and white kids attend the same schools, but about the quality of public education. Sounds sensible. Segregation is no big deal as long as everybody gets a good education! I can almost hear the decayed, maggot-riddled corpse of the Plessy decision stirring. Both he and Roberts are saying: Trust us. There's nothing we can do about racial segregation in the schools. Americans must decide such issues individually. But if we can't do anything about separation this time round we'll make sure we're all equal. Honest.

Marcus Daniel is an associate professor of U.S. history at the University of Hawai'i-Manoa. He wrote this commentary for The Advertiser.