BROWN vs. Board of Education, the Supreme Court's landmark declaration that racially segregated public schools were unconstitutional, may be the court's only ruling in the last 200 years that virtually everyone today agrees was "rightly decided." It is simply unimaginable that a president would appoint, or that the Senate would confirm, a court nominee who failed to pay homage to the 1954 decision.
Indeed, embracing Brown has become a ritual among nominees, even among those -- such as the late Chief Justice William H. Rehnquist -- who had opposed the ruling when it was originally made.
But the chorus of approval for Brown has for many years masked a deep division over what the decision actually means. To liberals, it mandated racial integration. It established the ideal that the Rev. Martin Luther King Jr. would evoke nine years later in his "I Have a Dream" speech -- a nation in which children of all races played in the schoolyard, hand in hand, in a harmony born of diversity. To those who read the decision this way, Brown was the underpinning for a host of measures, voluntary as well as involuntary, designed to undo centuries of racial apartheid and create a genuinely integrated public education system.
Conservatives, however, have always harbored a narrower view. Even as they embraced Brown's rejection of government-sponsored segregation, they balked at reading the ruling as an affirmative demand for integration, except as strictly necessary to undo the direct effects of past discrimination. And they rejected aggressive remedies, such as busing, to ensure integrated classrooms.
Before its summer recess next week, the Supreme Court will probably unmask, by a 5-4 vote, this basic discord by announcing a fundamental reinterpretation of Brown. The new view would read Brown not as mandating integration, or even as neutral on the point, but as affirmatively prohibiting voluntary measures to achieve integration if they involve race-conscious government action.
Although predicting the outcome of Supreme Court cases is fraught with peril, the occasion for this anticipated revision is two cases, one out of Seattle and one from Louisville, Ky. In both communities (as is common across the country), local elected officials chose to promote racial diversity in their public schools by using a student's race as one factor in deciding which school the student attended.
The Seattle and Louisville approaches are different in some specifics, but both allow parents to make the first choice of where their kids should go to school. The school districts, however, may use race as a "tiebreaker" to even out enrollment between over- and under-subscribed schools so that, in the end, every school has a reasonable level of racial diversity.
The programs differ substantially from what we ordinarily think of as affirmative action in public education. In making school assignments, they do not give members of one racial or ethnic group a boost over members of another. As one federal judge put it, the programs do not "restack" the deck for school admissions, they merely "reshuffle" the cards.
However modest the use of race is in these programs, it is probably still too much in the eyes of the court's conservative majority. When the cases were argued before the court, Chief Justice John G. Roberts Jr. (who will most likely be the author of the court's expected opinion) appeared to have five votes, including himself, for striking down the student-assignment programs and also for the new reading of Brown, which he outlined in his questions.
Under Roberts' reinterpretation of Brown, the decision's central message is that government must be strictly "colorblind" because all racial classification is inherently pernicious. In this view, there is no legal or moral difference between a school assignment program (like those at issue in Brown) that enforces racial segregation and others (like Seattle's and Louisville's) that are designed to ensure some measure of integration.
There is undeniable power in this colorblind vision. Historically, racial classification has often served as an engine for injustice, and even "benign" uses of race for affirmative action have left victims in their wake.
Yet for the court conservatives to draw on the incomparable power of Brown to legitimize this particular view of the Constitution would be to tear the Brown decision from its historical roots and context. The singular objective of Brown was to end a system of state-sponsored segregation 300 years in the making, fully recognizing how difficult it would be to create racially diversified public schools.
Indeed, it is unfathomable that school officials in 1954 Louisville would have voluntarily allowed racial mixing in their schools. And it is equally unfathomable that the justices who decided Brown would have spurned the Louisville school board if it had adopted in 1954 the program it more recently implemented to maintain the racial diversity in its schools that Brown decreed.