The Brown decision's considerable legacy

THE BALTIMORE SUN

HALF an inch beneath the surface of this week's triumphant rhetoric about the 40th anniversary of the Supreme Court's ruling in Brown vs. Board of Education is a prevailing view that Brown has a mixed, even disappointing legacy -- that it engendered dreams of racial integration that have failed to come true.

That assessment is grossly unfair.

The Brown decision was meant to end legally segregated public school systems and it did so, in a way that forever changed the racial consciousness of the nation.

In 1954 there could hardly have been a more daunting task than abolishing segregation in the public schools of the South, which had successfully maintained Jim Crow laws since shortly after the end of Reconstruction.

Thurgood Marshall's NAACP Legal Defense Fund spent the better part of two decades, trying case after case under the most difficult conditions, to get the justices to hear a direct challenge to the 1890s doctrine of "separate but equal."

The court itself probably couldn't have arrived at the Brown decision if it hadn't been for the death of Chief Justice Fred Vinson in 1953 and his replacement by Earl Warren, who was more sympathetic to the cause of ending segregation and had the political skill to bring the court to unanimity.

And having made the decision, the justices were so worried about its enforceability that a year later they told the South that it did not have to desegregate immediately but "with all deliberate speed."

Many lawsuits, demonstrations and armed confrontations later, the decision was finally obeyed.

The South today has the country's most integrated public schools, which stands as a miraculous accomplishment.

And it is no accident that the Martin Luther King phase of the civil rights movement began on the heels of the Brown decision, with the Montgomery bus boycott in 1955. Once the Supreme Court had declared school segregation unconstitutional, the other forms of American apartheid -- separate accommodations, denial of voting rights -- became vulnerable in a way that they hadn't been before.

The 11 bloody years from the Brown decision to the Voting Rights Act of 1965 stand as the greatest period of racial progress in our history.

But if Americans are disappointed in the legacy of Brown, there is a reason. It lies in the way the case framed the issue of segregation.

It was by design that Marshall and his colleagues chose schools, among all the venues of segregation, as the one to attack.

The way to get the public to change its mind about racial issues is to draw attention to the contradiction between racial injustice and the core national ideals -- especially the ideal of universal opportunity.

By the 1950s, education had become closely identified with opportunity, so school segregation could be presented as denial of opportunity: a fundamental violation of the country's compact with its citizens. Marshall took pains to do this in making his case to the court, and the decision was couched in the language of equal opportunity.

Once the government had embraced that idea, the natural question was what to do about inferior all-black schools outside the South, where legal segregation wasn't the issue. This is the question that, unanswered, still haunts the country.

The Civil Rights Act of 1964 ordered the government to undertake an ambitious study of the issue of equalizing educational opportunity between the races.

Liberals thought the study would show that black schools were woefully underfinanced, which would lead to the federal government's sending them extra money to bring them up to par.

Despite the end of Jim Crow, the assumption was that most of these impoverished schools were in the South. With the Watts riot still to come, the nation as a whole was amazingly unaware of the problems of the North's urban ghettos.

But the study, by University of Chicago sociologist James S. Coleman, found that black students' performance was most strongly affected by their family background, not their schools' budgets.

If any external factor seemed to help, it was whether they went to an integrated school.

By the late '60s, everyone realized that the segregated and unequal school wasn't just a Southern problem.

Mass migration had almost overnight made blacks America's most urban ethnic group. Because most public schools serve neighborhoods and most urban neighborhoods are segregated, most blacks went to all-black public schools -- and still do.

Because public education is locally controlled and mainly financed by property taxes, white schools were not only separate but wealthier.

Between the two most obvious remedies for the low quality of black inner-city schools -- integration and more money -- the Coleman report tipped the balance in favor of integration.

Integration meant busing. And after Brown, liberals assumed that the place to go for race-relations victories was the federal courts, not Congress.

For a while -- up through Swann vs. Charlotte-Mecklenburg Board of Education (1971) -- the strategy worked. But now that the issue was national, the opposition was immeasurably stronger.

Richard Nixon won the presidency in 1968 in part because of his fierce opposition to busing. He then appointed justices who also opposed it. By 1974, in a crucial 5-to-4 decision, the court ruled in Milliken vs. Bradley that cities and their suburbs couldn't be forced to set up cooperative busing plans. With that decision, the Supreme Court bowed out of the lead role in school integration.

Six years later, the election of Ronald Reagan brought to an end the executive branch's involvement in busing. By 1994, it's fair to say, integration is not on the national agenda.

It hardly ever comes up in presidential or congressional campaigns. The least successful busing plan in the country, in Boston, is also the one best known by the opinion-making class of the East Coast, so busing is assumed to be finished forever.

School integration, with its implication that black students will learn more if they're around whites, isn't a cutting-edge cause for black leaders either.

As for spending-based remedies to the inferiority of all-minority public schools, they attract such intense political opposition -- having recently put away Gov. Jim Florio of New Jersey, for example -- that they are often assumed to be impossible too.

The favorite conservative solution, government vouchers, has no momentum in Washington. What's left is a Southern-style, casual acceptance of a well-known injustice -- as something impossible to correct, something we just have to live with.

But the situation should not generate so much despair. Not all the news about school integration is bad. It is the much more limited phenomenon of all-poor, all-minority schools that should be thought of as a real crisis.

The main positive development in school integration over the past two decades has been the growth of "choice" programs in urban school districts, in which parents are allowed to choose where their children go to school. Forty-one of the nation's 45 biggest school systems have these programs. Total enrollment is 1.2 million in nearly 2,500 "magnet schools."

These schools generally have a specified focus -- science, the hTC arts and so on -- but their real purpose is to keep middle-class, especially white, students in the public schools by giving them especially good and not overwhelmingly minority schools.

There are controversies surrounding magnet schools' favored status and selective admissions, but what is amazingly uncontroversial is the idea of students' traveling outside their neighborhoods to go to schools explicitly set up to have a racial mix. Most magnet schools have waiting lists.

Busing still goes on all over the country, in cities such as Springfield, Ill., Charlotte, N.C., and Louisville, Ky., without generating Boston-like resistance or wholesale flight from the public schools.

In polls, solid majorities of black parents still support busing and white opposition to it is no longer overwhelming. Nor is spending equalization as dead an issue as it may appear to be. The policy debate over whether it does any good is finally showing signs of consensus around the idea that spending does produce results if it goes directly to classroom instruction rather than administration.

Extra money is available for poor districts -- from the federal Chapter 1 program, and from the states as a result of a 1977 Supreme Court decision that local schools could be ordered to provide remedial programs to make up for the effects of past segregation.

New Jersey, Michigan and Texas have been wrestling in the political arena with the issue of unequal spending.

What should outrage us today is the condition of the bottom of the American public education system, which is almost entirely reserved for minority students -- children whose parents have been unable or unwilling to get them into magnet schools.

Gary Orfield, a Harvard professor of education who is a veteran crusader for school integration, says all urban schools that are mostly poor are also predominantly black or Hispanic.

These schools, especially in big cities, not only are deteriorated physically but also have the air of penal institutions: metal detectors at entrances, armed guards cruising the hallways, burned-out teachers and administrators whose main goal in class is to maintain order, angry and fearful students who usually leave when they get the chance.

Only miraculous kids can use these schools to get anywhere worthwhile in society. For the rest, opportunity doesn't exist. Hardly any whites go to schools like this. The racial injustice is on a par with the injustice that led to the Brown case.

It is not, however, a situation at whose beating heart lies a law that is unconstitutional, and therefore it is not one that will be resolved by court decisions.

The four-decade aftermath of Brown vs. Board of Education demonstrates not just the power of the Supreme Court to right wrongs but also its limits. If the court gets very far ahead of the electorate, the electorate will remake the court.

We have to come to some public, political resolution of the issue of race and education, using the range of tools now available to find a way to make our worst schools decent.

This will be difficult and take a long time. But progress on our racial problems never comes without sustained, intense engagement.

What bodes well now is what also made the Brown decision possible. The country still believes in equal opportunity, and appeals to that belief have a way of prevailing in the end.

Nicholas Lemann, a national correspondent for Atlantic Monthly, is author of "The Promised Land."

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