WASHINGTON -- Thirty-seven years after the Supreme Court's ruling in Brown vs. Board of Education desegregating public schools, the court agreed yesterday to spell out what it takes to satisfy that decision at the college level.
In a brief order, the justices promised to rule -- probably next year -- on a test case from Mississippi, where blacks are complaining that a "separate but unequal system" of state universities is still "substantially intact."
No one in the Mississippi case disputes that intentional segregation by race at state-run colleges is as unconstitutional under the Brown decision as it is in public high schools and elementary schools. The dispute is over what to do about it. The court has never spelled out how the states are to obey the constitutional duty to desegregate their colleges.
A federal appeals court in New Orleans ruled in September that a state that once ran a racially segregated college system does not have the same duty to dismantle the colleges' racial character as public school systems do.
If a state stops intentionally discriminating at the college level and switches to a "freedom of choice," race-neutral policy, that is enough, the 5th U.S. Circuit Court of Appeals ruled in the split, 9-5 decision.
The "freedom of choice" plan has been largely outlawed since 1968 as a means of desegregating public high schools and elementary schools because courts generally have found that that does not remove all the residue of former race bias and that all-black or all-white schools sometimes remain.
Thus, for those schools, boards of education have been required to take all necessary steps to root out race as a controlling factor: in student assignment, in programs, in faculty and in transportation.
But the federal appeals courts are split on whether the same goes for colleges that once were segregated by race.
The appeals court that sits in Cincinnati, the 6th Circuit Court, has ruled that the constitutional duty is the same: Eliminate all "vestiges" of former bias.
But in the Mississippi case, the New Orleans court interpreted a 1986 Supreme Court action dealing with segregated 4-H clubs to mean that any state-run program of voluntary education -- as in colleges and universities -- need only be race-neutral to satisfy the Constitution.
The Bush administration, joining 23 black Mississippians, has urged the court to overturn that result.
Besides the constitutional issue, the Mississippi case tests whether federal regulations require that any state getting federal funds for its colleges must eliminate all signs of racial segregation. The outcome of that case could affect Maryland's higher education system, which is being reviewed by the U.S. Department of Education on its progress toward desegregation.
The court agreed to rule on two appeals in the same case: U.S. vs. Mabus (No. 90-1205) and Ayers vs. Mabus (No. 90-6588). A decision is expected sometime next year, in the court's next term.
In other actions yesterday, the court agreed to rule on the constitutionality of laws in all 50 states that restrict the distribution of political leaflets near polling places; on the constitutional duty of state and local government to provide safe workplaces for their employees; and on the limits the Constitution puts on the use of force by prison guards.