July 5, 2007 — Vol. 42, No. 47
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The future of voluntary integration plans

Charles J. Ogletree Jr.

Charles Hamilton Houston, the legendary African American litigator who graduated Harvard Law School in 1922 and trained many of the lawyers who won the unanimous Brown v. Board of Education case in 1954, never flew too high when he won a case nor too low when he lost one. He always kept his eye on the larger struggle for racial justice. After one big courtroom victory, he cautioned against celebration: “This fight for equality of educational opportunity [was] not an isolated struggle. All our struggles must tie in together and support one another … We must remain on the alert and push the struggle farther with all our might.”

The same advice works in loss, too. If you read the headlines and skipped the fine print last week, you know that in a sharply divided 5-4 decision, the Supreme Court struck down voluntary school desegregation plans in Seattle and Louisville, Ky. In both cities, educators had devised the plans, which allowed children the option of attending school outside their neighborhoods, with community and parental support. Both plans evolved in response to educators’ negative experiences with segregation and far more positive experiences with diversity.

The Roberts Court has issued numerous similarly split votes on important issues. However, this case, more than any other, revealed both the fissures within the court and provided a clear sense of how far to the right the Court has moved. Justice Stephen Breyer illustrated this most passionately in his dissent, which was joined by three other justices.

Rarely, Breyer wrote, “have so few, so quickly, changed so much.” This is a ruling, he said, that “the Court and the nation would come to regret.” Justice John Paul Stevens signed Breyer’s dissent and wrote his own: “It is my firm conviction,” he said, “that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

The decision, striking down the explicit use of using racial classifications in making school assignments, has direct relevance to Massachusetts. We all know that Boston’s tortured history with race and schooling brought the city much unwanted national attention in the 1970s. Less well known, though, is the Commonwealth’s far quieter, small and yet largely successful efforts to counteract the racial segregation that characterizes so many of our public schools. Our job now is to preserve these voluntary school desegregation programs that have developed over the years in so many of our cities and towns. We may need to revise them accordingly. But this process can remind us, too, about why such policies and programs were created in the first place.

Today, the Northeast region of the nation, Massachusetts included, has the highest school segregation rates in the country. Most of the segregation exists between cities and their suburbs, making the four-decade-old voluntary, cross-district school desegregation program METCO more relevant than ever. Also vitally important are the dozens of school districts that have voluntarily crafted policies to foster diversity and prevent segregation. We remain a highly segregated state. But at least these proactive programs bring some form of diversity to what would otherwise be even more segregated schools.

Thankfully, in an otherwise regrettable decision, the Supreme Court did reaffirm states’ compelling interest in creating racial diversity and left several policy options available to achieve this goal. In his concurring, controlling opinion, Justice Anthony Kennedy wrote: “The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic and economic backgrounds.”

With that in mind, the Charles Hamilton Houston Institute for Race and Justice stands prepared to work with and provide information to school officials, representatives from the METCO program and government officials in their effort to preserve desegregation programs in the schools. It should be made clear that there is no need to rush and abandon plans that have been successful for years. The state Department of Education and the Attorney General’s Office will work closely with school districts to review plans, and modify programs, if necessary. In the fall, the Houston Institute will convene lawyers, school board representatives, constitutional scholars, civil rights advocates and others to consider these difficult legal questions and provide even more guidance and information to school boards, their attorneys and community groups.

Last week’s decision was a setback. But if there is a silver lining, it is that so many people in Massachusetts from all walks of life will end up finding common ground in their commitment to create schools that look like the larger society our young people will one day enter as adults. The state attorney general’s office, state department of education, many parents, local schools boards and civil rights leaders are united in a determination to prevent schools from being dragged back into a segregated past. The Supreme Court has at least stated that racial integration of schools is a compelling state interest. This state — Massachusetts — has the opportunity to demonstrate how to adjust, adapt and move forward for the good of all in our increasingly multiracial society.

Charles J. Ogletree Jr. is the Jesse Climenko Professor of Law at Harvard Law School.

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