A Supreme Court Conversation
While we await today's school segregation decisions, I'll answer your earlier question about the impact of Brown v. Board of Education. Both sides in the debate over whether to use race to maintain integrated schools invoke and rely upon Brown to support their position. Supporters of the Lousiville and Seattle plans believe that the promise of Brown was to use the schools to bring the races together to help move the country from a segregated society toward one America. Those challenging the plans believe the fact that some requests for school assignment are denied because of the race of the pupil violates Brown's condemnation of racial classifications.
So, what was Brown all about?
It is difficult to convey to someone who wasn't living in the South the magnitude of the Brown decision. On the 40th anniversary of the decision, I revisited that day for the Washington Post:
I REMEMBER nothing of my 13th birthday, which was celebrated in some now unrecallable fashion on a May Saturday in 1954. But I will never forget what happened the following Monday. ...
I was stumbling, unfocused, through the seventh grade at Myers Park Junior High in Charlotte, N.C. It was just past midday when a knock on the classroom door aroused me from my post-lunch slumber. The assistant principal, standing just outside the partially open door, carried on a whispered conversation with our fourth-period teacher. At conversation's end, our teacher closed the door and turned (in my mind's eye, in slow motion) to face the class. Our distracted chatter dropped to a hush as we noted his ashen face. I believe I remember, 40 years later, his exact words:
"Children," he said slowly and deliberately, "the Supreme Court has ruled. Next year you will go to school with colored children."
["A Southern White Recalls a Moral Revolution." The Washington Post May 15, 1994, Sunday, Final Edition]
In fact, nothing happened the next year. Or the next. Five years later, I graduated from a still all-white public school without ever having attended school with a black child. In fact, I finished college and law school, clerked for a Supreme Court justice, and was a law professor teaching Brown when the Supreme Court finally brought a meaningful end to the de jure segregation of the public schools of the rural and small-town South in 1972.
Nothing happened in 1954—and everything happened. Brown put a powerful proposition to the American people: that racial segregation was immoral and unconstitutional. For many young white Southerners, the court turned Jim Crow from a social fact into an inescapable and powerful moral question. From the day our teacher solemnly announced the court's decision, my life through high school and college in the South was energized by an endless and fierce argument about whether the Supreme Court was right that segregation was wrong, and what one should do about it. The causal link from the court's ruling in Brown to my walking a picket line in front of a segregated movie theater was direct and strong. The decision of May 17 initiated a debate the changed the South—and the nation—forever.
The idea that the principle of Brown condemns the valiant efforts of, say, the Louisville community to maintain schools attended by both black and white students seems profoundly wrong to me. The Louisville school system (I keep using Louisville, because I know that case better) takes account of the race of students to keep each school integrated. They don't try to replicate the one-third-black percentage of the district as a whole in each school, but they do take race into account where that figure would otherwise fall below 15 percent or above 50 percent. Good people, black and white, in Louisville have refused to give up on the public schools. They know that sharp imbalances in the race of a school population leads to "white flight' from the schools and that using race to keep schools integrated is essential to the viability of public schools.
Of course, they could have a system in which each school almost always reflects the racial proportions of the district's overall population simply by assigning all students by lottery. Each school would usually wind up about one-third black. No system would do that because assignment by lottery would impose enormous costs on families in transportation and deprive them of the great advantages of neighborhood schools. But, as I argued in my last posting, using neighborhood as the sole mechanism for school assignment means that the schools will replicate the housing segregation that defines Louisville as it does many of our metropolitan areas. The carefully planned Louisville system combines neighborhood schools with parental choice and some use of race to ensure an integrated experience and a viable public school system.
Looking at today's cases from the vantage point of the Brown decision, the idea that the Supreme Court would condemn the valiant efforts of the Louisville community is extraordinary. The people of Louisville want a community that is not separated by race, beginning with a school system in which white and black children learn to know one another.
Brown condemned a system of Southern racial apartheid, a system of racial domination and subordination. It is the worst form of literalism to believe that the cases now before the court can be decided by the fact that the phrase "classifying by race" can be used to cover two radically different notions. Only by blinding oneself to history and common sense can one assume that the use of race to maintain the monstrosity of the Jim Crow regime of the South and the use of race to achieve an integrated society in Louisville are one and the same.
You and I and Stuart Taylor will have a lot to talk about today.
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.