When the Supreme Court abolished the "separate but equal" doctrine in 1954, it unanimously ruled that "separate educational facilities are inherently unequal." Now, some 38 years later, we may be witnessing the court's reversal of that principle in its decision Tuesday holding that schools which are segregated due to demographic patterns need not necessarily be subjected to continual judicial supervision.
The court's unanimous 8-0 decision came in a case arising in DeKalb County, Georgia, where the school system, once segregated by law (de jure segregation), became integrated while under a federal court order. Once the district court was satisfied that the schools had become integrated and lifted its order, the school system again became racially segregated, this time as a result of residential patterns (de facto segregation). The suit, brought by a group of black children and their parents, asked the court to reinstate the desegregation order. School authorities claimed they made their best efforts to desegregate and ought not be blamed for residential configurations.
The court decided that federal district court supervision may be withdrawn if the local school board was not at fault in bringing about segregation. The court did hold, however, that the court could continue to supervise desegregation in particular areas, if for example it felt that there were racial inequities in school enrollment or faculty assignments, distribution of materials or financial allocations.
According to the majority opinion, written by Justice Anthony M. Kennedy, "partial relinquishment of judicial control, where justified by the facts of the case, can be an important and significant step in fulfilling the district court's duty to return the operations and control of schools of local authorities."
The ultimate result of the court's decision may well be that if a school system can show that it has made its best efforts to desegregate, then nothing else need be further undertaken to integrate the schools. A system of separate but equal may again be judicially condoned.
Critical public policy issues are at stake here. At what point, it should be asked, must the judicial system remain engaged in public education? Is there a point after which it is time for the democratic elements of society to take control of local affairs? In other words, if people insist on living separately, why shouldn't they have schools which are separate as well? Again, according to Justice Kennedy's opinion, "racial balance is not to be achieved for its own sake. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors."
These issues are complicated by yet a second case on which the court has heard arguments but not yet issued a ruling. In a case concerning the higher education system in Mississippi, the claim was made that historically black colleges received a disproportion of the state's higher education resources and revenues in comparison to the state's historically white colleges. As a result, the suit asked the court to integrate the institutions of higher education. Lawyers for the black Mississippians who brought the case argued that the state colleges and universities there make up "a system rooted in the days of apartheid."
In this case, the public policy issues demand answers to such questions as: What ought to be the future of the historically black colleges and universities? Given Maryland's own history of segregated institutions of higher education, this question has a direct resonance in our state. Should Morgan, Bowie, and Coppin State and UMES be "allowed" to retain their traditional character as black institutions? If black students want to go to black colleges, why shouldn't they, just as some students may choose to attend single sex institutions?
The court could hold that choice is the major factor and that in order to preserve the historic nature of the black colleges and universities, all that Mississippi need do is to rectify the resources problem. The institutions themselves may remain segregated; hence, once again the court could judicially countenance a system of separate but equal.
The important point is that must not be lost is that we need to be fully aware of the consequences of the court's holding Tuesday in the DeKalb School case and should the court hold that the Mississippi colleges need not desegregate: It amounts to a return to the separate but equal standard, once repudiated as incompatible with the principles of American democracy. This will have profound consequences affecting every aspect of American life. It could turn out to be an ironic, tragic turn of events.
Jack Fruchtman, Jr. directs the prelaw program and teaches politics at Towson State University.