WASHINGTON -- Brown vs. Board of Education -- the case that started it all in school desegregation four decades ago -- went into a new and possibly decisive phase yesterday by order of the Supreme Court.
The justices told a federal appeals court to reconsider a 1989 decision that the Topeka, Kan., school board had not yet done enough to desegregate the races in its elementary and middle schools.
In their brief, mostly unexplained order, the justices said the lower court must take into account two recent rulings making it easier for school systems that once were racially segregated by law to get out from under desegregation orders -- a little at a time, or all at once.
The Topeka case has worked its way through two generations of pupils. Linda Brown, who as a young girl gave her name to the case in the early 1950s, is now Linda Brown Smith, the parent of two children, Charles and Kimberly, who were involved in the latest legal challenge.
The original case, begun by black parents and children in 1951, reached the Supreme Court and was the lead case when the justices ruled unanimously in 1954 that segregated schools are unconstitutional. A year later, the court in that case and others said schools were to be desegregated with "all deliberate speed."
Yesterday's order was one of a series recently in which the court has appeared to be opening the final chapter on school desegregation.
In addition to acting on the Topeka case, the justices indicated in a separate order that they may start cutting back on the force of another historic ruling: the 1966 decision in Miranda vs. Arizona.
That decision requires police, before questioning a suspect they are holding, to warn of the right to keep silent and to have a lawyer on hand -- warnings now thoroughly popularized through police portrayals on television and in the movies.
The court said it will consider, in its next term starting in November, a plea to block all state prisoners from bringing their "Miranda warning" complaints to federal courts if they already have had a full and fair chance to make those claims in a state court. That issue arises in a case involving a double murder in Michigan, Withrow vs. Williams.
The court's order in the Topeka school case sends that lawsuit back to the 10th U.S. Circuit Court of Appeals in Denver. That court will have to decide whether Topeka schools have met their constitutional duty -- in whole or in part -- or whether they must make significant new efforts to end one-race schools.
In late 1989, that court accused Topeka schools of "a form of benign neglect," and declared: "There is every reason to believe that further desegregation is feasible."
In the city's 26 elementary schools, white students make up 90 percent or more of the population at five schools and more than 80 percent in seven. Minority students have more than 50 percent of the places in four schools.
In the city's six middle schools, serving grades seven and eight, two are 90 percent white, one is more than 80 percent white, and minority students are less than half the student body in any school.
The Circuit Court, while saying that local school authorities generally had "heeded the prohibition" against racial segregation, added: "What Topeka did not do is actually strive to dismantle the system that existed."
Ordering Topeka to come up with additional steps, the Circuit Court said: "We have no reason to think that Topeka has exhausted the repertoire available for desegregating schools."
The continuing problem, it said, was the dominance of race in too many schools, and the clear patterns of assigning minority faculty and staff members to schools with larger minority student populations.
Christopher A. Hansen, the American Civil Liberties Union lawyer who represented the parents and children in the latest appeal, said he did not expect the Circuit Court to relax its order for added desegregation measures.
Other Supreme Court actions
* Pornography.The Supreme Court voted yesterday to leave intact a lower court decision saying that cities may not put zoning limits on stores that sell or rent "take-home" pornography sexually explicit material that is not watched or read at the place where it is bought or rented. The Washington Supreme Court struck down an ordinance in the city of Tukwila, Wash., which had confined all "adult" stores to the local factory and warehouse district. City of Tukwila vs. World Wide Video.
* Church employees. In another order, the court declined to review a Pennsylvania court ruling that a state may deny state unemployment benefits to a worker who was fired by a church for publicly disobeying its religious dogma. The case involved Maria Wesley of Baden, Pa., fired from her teaching job at a Roman Catholic school in Pittsburgh after she married a divorced Catholic man whose prior marriage had not been annulled by the church. Wesley vs. Pennsylvania Unemployment Compensatin Board.
* Lawyers and libel. The court also refused to disturb a Wyoming Supreme Court ruling saying that magazines, newspapers and other publications get less constitutional protection when they defame a lawyer who merely is handling a client's lawsuit -- even if the lawyer otherwise is very famous. The state court decision appears to mean Hustler magazine will be more legally vulnerable when a trial starts on a claim by noted libel lawyer, Gerry Spence, that the magazine harmed his reputation. He complained after the magazine made him the winner of a fictitious monthly prize -- depicted by a part of the anatomy -- given to its enemies. Flynt vs. Spence.