Today, the vision of Jim Crow stirred in the federal courthouse in Montgomery. And even more menacingly, it appeared across the street from the nation’s Capitol, in the Supreme Court. Four justices seek fervently to turn the clock back. Back to the dismal era before 1954. And a fifth justice waivers, perhaps, siding with them for the moment. In a stunning 5-4 decision, the Court outlawed a modest plan brought forward by two cities to insure that the student populations in their schools reasonably reflected of the population as a whole. These cities saw virtue in diversity. That’s not a radical vision. It’s shared by a great majority of Americans. But not, apparently, by five men on the Supreme Court.
The majority opinion was authored by Chief Justice Roberts. During his Senate confirmation hearings, Roberts was queried in some detail about his attitude towards the rule of stare decisis, as lawyers call the rule under which courts adhere to that which is settled by prior courts and do not disturb that which is decided. Several senators also asked him in particular about his attitude towards the decision in Brown v. Board of Education, in which the Court said that the notion of “separate but equal” education could not be reconciled with the Constitution. Would he uphold the rule in Brown? Roberts gave solemn assurances that he would not overturn Brown.
However, Roberts apparently has had a change of heart since being sworn in. Because that’s exactly what he attempted to do. Now the doctrine of Brown hangs by the thinnest of threads, namely the fact that Justice Kennedy decided to concur rather than join in some critical aspects of the Court’s opinion. Only on the basis of the Kennedy concurrence can we say that Brown has not been overturned – or at least not yet.
The decision in Parents Involved and its companion case also reveals another fraud. The sponsors of Justices Roberts and Alito claimed that they would be the advance wave of a new federalism, pulling the federal government and the courts back from the states and local authorities and giving them a free range to do what they pleased. In the current generation of desegregation, we are not dealing with court-imposed busing plans, but rather with local governments in Seattle and Louisville that decided to take some steps to ensure that the student bodies reflected the community more broadly rather than reflecting the de facto segregation of ethnic neighborhoods. But Roberts, Alito, Scalia, Thomas, and on a less sure basis, Kennedy held this to be unlawful.
I grew up going to schools with and without busing. Frankly, I could never understand the arguments against busing (excepting perhaps for fuel economy). Going to schools that reflected the broader community was a good thing, leading to a broader, richer and more diversified experience in the learning process. A school in which all students and teachers reflect the same ethnic, cultural and economic profiles is a pretty anemic place. In fact I watched those forces in work. They produced a higher proportion of narrow-minded bigots, it seemed to me.
“I have a dream,” said Dr. Martin Luther King Jr.,
“that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”
And indeed for a while it seemed that this dream so vital for a just nation that realized the full value of its great human resources was becoming reality. Today, however, it is being hurled back into the world of distant aspiration.
For the Roberts Court has adopted a new watchword, and it is “Resegregation.”