Has a majority of the U.S. Supreme Court capitulated to a kind of defeatism, no matter what the Constitution it was created to defend may say about equal rights?
Or does the majority think that enforcing the equal protection clause in classrooms alone has yielded as much progress toward racial justice as it can, and the time has come to explore other avenues?
Either way, the court’s 5-3 ruling this week on a federal judge’s decision to return controls of Oklahoma City’s schools to the local board is one of the most important school cases since 1954, when Brown vs. Board of Education declared segregated classrooms violate the Constitution.
The court said, in part, that the judge made the right move, even if it also meant condoning a return to schools that are either nearly all white or all black.
Justice Thurgood Marshall certainly saw it as a capitulation. In dissent, he wrote that the court has always insisted on lasting integration of formerly segregated schools because of the “unique harm” that separating students by race does to black students.
”. . . racial separation, for whatever reason,” he wrote, “remains inherently unequal.”
Marshall, who argued and won the Brown case that set the nation on its faltering path toward integrated schools, wrote with eloquence and passion. But his dissent lacked the anger he is entitled to feel, given recent studies that show racial antipathy, if not as strong as ever, at least stronger than society can tolerate.
Not for the first time, however, there are enough ambiguities in the majority opinion, written by Chief Justice William H. Rehnquist, to provide comfort for either view.
The case involved a 1977 finding by a federal judge, who supervised operation of a court-ordered integration plan for Oklahoma City schools, that the local board could be trusted to operate the plan without a judge looking over its shoulder.
In 1985, the board abandoned busing for students from kindergarten through the fourth grade. Because the city’s neighborhoods generally are segregated, only about one elementary school in three is racially mixed today, and the rest are nearly all black or all white. An appeals court in Denver overruled the judge; the Supreme Court rejected some, but not all, of the Denver decision.
It ordered the Oklahoma City judge to review whether the local school board had demonstrated a good faith effort to integrate schools until it changed its assignment patterns in 1984. He is also obliged to rule whether the board’s existing assignment pattern provided the equal protection required by the Constitution.
In a crucial passage, the court says that in deciding whether the Oklahoma board has done all it could to erase de jure segregation, the judge must also decide what role housing historically plays in school segregation, and vice versa.
In one decision, the Oklahoma City judge wrote that housing patterns are determined by private decisions and by economics. Besides, he wrote, the way communities grow is a weak reed on which to rest a case that housing patterns are a vestige of deliberately segregated schools.
The court ordered both lower courts to look at this case, and by implication, determine how far courts muSt go in mitigating the effects of housing segregation.
Marshall dismissed the order as a grudging recognition that there is more to school desegregation than the way schools operate; he also reads it as a crib note on which the local judge could base a decision that might take housing out of the school picture.
The unfairness and what Marshall calls the “stigmatic injury” caused by separating black students from white make his suspicions of the court’s motives easy to identify with. They also make it imperative to hope that the opinion means something better.