The National Catholic Review
Fifty-three years ago, the moral issue that most preoccupied the national conscience was not posed by a misbegotten war abroad but by racial discrimination against African-American school children at home. At that time, the 16 states that made up what the U.S. Bureau of the Census called the Southern Region, along with Missouri and the District of Columbia, maintained by law a compulsory biracial public school system. This arrangement was defended on the grounds that it was not discriminatory as long as the facilities in the twofold system were equal, although separate.

In fact, the schools for black children were vastly inferior to those for white children. In any case, that argument for the system was decisively rejected on May 17, 1954, when the U.S. Supreme Court ruled unanimously that it was unconstitutional. In his opinion for the court, Chief Justice Earl Warren said in two memorable sentences: We conclude that in the field of public education the doctrine of separate but equal’ has no place. Separate educational facilities are inherently unequal.

Although that decision ended racial segregation imposed by law, it did not automatically create integrated schools. The de facto segregation created by the housing patterns of all-black neighborhoods continued in the North as well as in the South. During the next several decades, efforts were made to achieve some degree of integration by busing students from one locale to anotheroften enough amid a tumult of protests.

Nowadays, families in inner cities are more interested in upgrading their neighborhood schools than in busing their children to the suburbs. This means, however, that a considerable degree of de facto segregation continues. In some districts, school boards have been using a strategy called assignment by race to achieve diversitythat is to say, an enrollment in every school that will mirror the social mix of the whole district. This requires, in some instances, making race a factor in determining school admissions.

In Kentucky, the Jefferson County school district that includes Louisville has 97,000 students. For some years, the district was under a court-supervised desegregation plan, but it was eventually judged to be free of racial segregation. To preserve this balance, the district adopted a scheme to insure that all its schools have a black enrollment of not less than 15 percent and not more than 50 percent.

In Seattle, Wash., School District No. 1, enrolling 46,000 students, has never been under a court order to desegregate; but it decided in 2000 to establish in its 10 high schools an enrollment that would correspond to the district’s overall composition of 40 percent non-Hispanic white students and 60 percent blacks, Asians and Hispanic students.

To achieve the desired diversity, school officials in these districts assigned students by race to one or other school if the school of their first choice was oversubscribed. In Jefferson County, white parents challenged this race conscious plan; but lower courts upheld it. In Seattle, a coalition of whites, blacks and other racial groups challenged that city’s plan, which has been suspended for the moment. On Dec. 4, 2006, the U.S. Supreme Court heard arguments in these two cases.

There are two questions here. The first is the constitutional issue that the court will decide: Are some children denied equal protection under the law if race is a factor in assigning them to a particular school?

In the past, the court has allowed such measures as busing for integration or affirmative action programs in higher education but only under two conditions. There must be a compelling need for such a measuresafeguarding national security, for instanceand a foreseeable end in sight for the plan.

The second question raised by these two current cases is one of moral ideals. By now it is taken for granted that all conscientious citizens reject the notion of racial segregation and are committed to the ideal of integration. Does that also mean they must support the strategy of mandatory assignment by race in public schools? Not necessarilyat least not until other methods have been tried. Suppose that so-called magnet schools offering first-rate facilities, teachers and curricula choices were built on the boundary between neighborhoods and achieved a diverse enrollment by attracting students of all races without dissension.

The court will decide the constitutional question by June or early July. Reporters have been predicting that the assignment-by-race plans will be struck down. Forecasting the court’s decisions is, however, a risky business. The school boards in Jefferson County and Seattle, together with the litigating parents, will just have to stay tuned.

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