Brown is Dead! Long Live Brown!

On Monday, the Supreme Court will hear two school integration cases that may well be the most important decision they release on the topic since Brown v. Board of Education. The Court will consider two voluntary plans adopted by Seattle (Parents Involved in Community Schools v. Seattle School District) and Louisville (Meredith v. Jefferson County Board of Education)to try and diversify their school district by spreading the White and non-White students across the various local elementary, middle, and high schools. Louisville is a particularly interesting case, as it has just emerged from being under court-supervised desegregation, and could be put in the peculiar position of being ordered to stop voluntary desegregation just a few years past when was still under order to desegregate. So we're on the verge of coming a full circle--from the courts refusing to interfere with local government segregation in Plessy, to the courts refusing to allow local governments to interfere with segregation in Meredith.

How we've gotten to this point is a strange odyssey that is a rather telling indictment of the fetishization of color-blindness. Consider the argument made by Solicitor-General Paul Clement, arguing on behalf of the Bush administration against (did you have any doubt?) the desegregation plans:

School districts have an unquestioned interest in reducing minority isolation through race-neutral means," Solicitor General Paul D. Clement said in his brief to the court. "But the solution to addressing racial imbalance in communities or student bodies is not to adopt race-conscious measures."

This is an evasive and roundabout way of saying that school districts can and should work to reduce racial segregation ("isolation"), so long as they don't use race. How one simultaneously notices race to identify a problem and ignores it when crafting a remedy (or at least a remedy that would be remotely effective) completely escapes me. To be clear, the practical upshot of Clement's formulation would be that any plan to desegregate the races, by virtue of the fact that it noticed race, is unconstitutional. Or put another way: desegregation is unconstitutional.

I'm a general advocate for using a complex vocabulary when talking about race and racism, but here is a case where the various rhetoric is mudding the waters. This case has alternatively been tagged as about affirmative action, race-consciousness, race preferences, diversity, integration, and desegregation. It is, to be clear, about the last. Sixty-two years after Brown v. Board required that schools desegregate, Meredith and Community Schools would--quite literally--forbid them from doing it.

People who engage in this color-blind fetishization try and invoke the specter of Brown by saying that Brown was about schools using race as a principle for sorting students. That's funny, because I thought the problem in Brown was that schools were segregated. If schools remain segregated, it doesn't really matter from the student's perspective why they are or how they are, just that they are. A student in a segregated school is harmed regardless of what circumstances place him there--a law saying "Blacks must attend this school," or a social reality in which all the Whites have moved to the other side of town. Rewriting Brown's history in this manner demeans the reality of segregation and its inherent ugliness regardless of whether it is imposed de facto or de jure. People can prioritize the color-blindness principle so far as to sanction the re-segregation of our schools, but it's a perversion to do that and claim the noble mantle of our nation's greatest case.

Some are wondering if these two cases might become known as Brown III. I don't know if that will come into being, and I don't know how the Court will rule. Tragically, defenders of racial justice are on the defense here--a victory will do little to move school integration along (after all, cities must voluntarily adapt these plans and it does nothing about interdistrict segregation), but a defeat would cripple the integrationist agenda. What I do know is that both sides, in their opinions, will insert the requisite paeans to Brown. We will never hear the fateful words uttered: "Brown v. Board of Education, overruled." But if the Seattle and Louisville plans are struck down, then the Court will be left to praise Brown in the very act of killing it.