WASHINGTON -- The Supreme Court began an apparently troubled search yesterday for ways to let once-segregated school systems come out from under court control, without leaving black pupils stranded in one-race schools.
In an hourlong hearing, the justices explored the first of what may become a series of "second generation" school desegregation cases -- that is, those in which schools have obeyed court orders to end segregation, and thus want to end crosstown busing and return to neighborhood schools.
In the first such case, however, a lawyer for black children in Oklahoma City contended that some of the same elementary schools that used to be black-only by official segregation remain segregated by race even if no longer by official design.
The neighborhoods around those schools are black only, and that was due partly to past official segregation, so school officials should remain under a court-enforced duty to eradicate that continuing one-race environment in education, argued the attorney, Julius L. Chambers of New York.
Mr. Chambers encountered strong skepticism from Justice Sandra Day O'Connor, who wondered if lawyers like Mr. Chambers would still be arguing "100 years from now" and "into future centuries" to keep court desegregation orders in effect.
The lawyer replied that courts must stay involved in places such as Oklahoma City "until all vestiges [of segregation] have been eliminated which would cause resegregation even though" officials assigned students to schools according to a race-neutral plan.
Justice Antonin Scalia chimed in: "If a quarter of a century of busing hasn't made a dent [in eliminating one-race elementary schools in Oklahoma City], why would you expect another century to do so?" When Mr. Chambers did not reply directly, Justice Scalia suggested that the lawyer was actually advocating a permanent, rather than a transitional, system of court-supervised desegregation remedies.
Justice O'Connor wondered if Mr. Chambers would be satisfied if black pupils in one-race schools could be assured of a right to transfer to schools they could attend with whites, but the attorney said that would not work in practice.
Not all of the probing, however, was aimed at the black children's lawyers. The school district's attorney, Ronald L. Day of Oklahoma City, also encountered skepticism from Justice O'Connor and others about an ultimate court ruling that would leave black children in the same situation they were before the Supreme Court ordered schools desegregated 36 years ago, in the case of Brown vs. Board of Education.
Justice Thurgood Marshall, who as an attorney was one of those who had won the Brown decision, suggested sarcastically to Mr. Day that Oklahoma City school officials seemed to be objecting to "complying with the Constitution."
Justice Marshall said the school system could surely claim no injury "by being required to operate schools in conformity with the U.S. Constitution." Rhetorically, he asked Mr. Day: "If you take the [court] order [to maintain desegregation] away, what assurance do I have that the school board will continue to follow the Constitution?"
U.S. Solicitor General Kenneth W. Starr, representing the Bush administration in support of the Oklahoma City school board, conceded that the court was confronted with a difficult question in trying to define when formerly segregated school systems had become desegregated and thus could go their own way without court supervision.
He said the outcome of that issue could affect hundreds of school districts.
He, too, felt some of the sting of Justice Marshall's comments. He "emphatically" rejected a suggestion by Justice Marshall that the federal government "does not think that a segregated school is unconstitutional."