The post-Reagan Supreme Court wonders what 'segregation' means anymore


October 07, 1990|By LYLE DENNISTON

Every now and then, there is a moment in the Supreme Court, sometimes only a fleeting one, to remind the visitor how very much different that place is now in the aftermath of the "Reagan revolution."

That happened last week. Not surprisingly, the reminding incident involved Justice Antonin Scalia, the member of the court who seems most like what former President Ronald Reagan wanted in a justice: a committed conservative, deeply devoted to very traditional views of constitutionalism. When one thinks of the major impact Mr. Reagan's presidency has had on the American judiciary, it is easiest to think first of Justice Scalia.

Last week's revealing moment, actually a couple of them, came in brief exchanges between Justice Scalia and a lawyer about what "segregation" is. That was not just a theoretical exercise (although Justice Scalia delights in jousts with lawyers over theory).

The exchange suggests that the very meaning of "segregation" may be an open question again -- 36 years after the Supreme Court, in Brown vs. Board of Education, first ruled that segregated schools are unconstitutional.

It needs to be said, very quickly, that there is absolutely no chance that the Supreme Court in the post-Reagan era will overrule the Brown decision; no one is suggesting that, and no one even seems to be thinking that. Moreover, there is no chance that the court will let school districts, again, deliberately assign pupils to schools or to classrooms strictly because of the color of their skin. That, of course, is "segregation" as it was understood, and outlawed, by the Brown decision.

But, in city after city across America, many black children go to school every day without seeing a white pupil, and many white children similarly never see a black in their classrooms. The lawyer who was appearing before the court, Julius L. Chambers of the NAACP Legal Defense Fund, was arguing that -- in many of those cities -- such separation of the races is still "segregation" and that, until it is eradicated, a school system should not be let off the hook legally or constitutionally.

Mr. Chambers, who was in high school when the Brown decision came down in 1954, has always understood that ruling and its promise to mean that school systems that once were deliberately segregated by official policy must try, and try once more, and then try again and again to see that there remains no "vestige" of that segregated system. Until it is all gone, he believes and argues, "segregation" remains and it is still unconstitutional.

But the mere fact that Mr. Chambers was standing before the Supreme Court has to be understood as an indication, by itself, that a majority of the court may not agree that what is left of racial separation in a good many cities of this country is "segregation" of a kind that has to be undone by court order if school officials don't end it on their own.

Oklahoma City's school system was granted review by the court of its claim that it is not responsible for the one-race schools that remain in its city, and that it, therefore, has no constitutional obligation to undo them. It at least is getting a hearing on that plea, and may well get more than just a sympathetic hearing: It just might win on it.

Mr. Chambers was warring against that last week, but the only clearly visible ally he had on the court was Justice Thurgood Marshall -- the one-time NAACP lawyer who was on the original team that won the Brown decision 36 years ago.

Justice Scalia, at three critical points in Mr. Chambers' presentation, openly bristled at Mr. Chambers' continuing comment that the one-race schools in Oklahoma City today were "segregated."

Said the justice initially: "You are using 'segregated' in an unusual way." In Oklahoma City, he went on, blacks are allowed to go to schools near where they live, not to some distant school to which they are bused in order to be sure they attend only with blacks -- old-style segregation.

Twice more, the justice raised his protest. In doing it a third time, he said with some exasperation that he was going to go on registering his "objection" to the use of the word. The schools in Oklahoma City, Justice Scalia insisted, "are not 'segregated' in any sense of the term I understand."

No one else picked up Justice Scalia's refrain. But it was enough, when combined with the skepticism that Mr. Chambers' plea seemed to be drawing from across the bench, to suggest that one might just have gotten a glimpse of the coming end of an era.

It is worth noting that the Supreme Court has not had a major school desegregation case before it in a decade, and so there has been no occasion to test the meaning, in that field, of the massive changes wrought in the American judiciary and in the court itself by the "Reagan revolution."

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