In the shadow of Brown

Is racially integrated K-12 education a compelling state interest?
Should we still be using race to get beyond race?
Is separate unequal?

Fifty years after Brown v. Board of Education, these questions still lie at the heart of public debate over school desegregation. They took center stage once again at the First Circuit Court of Appeals' en banc hearing in the case of Comfort v. Lynn School Committee on Monday afternoon.

The case tests the constitutionality of the Lynn School Committee student assignment plan, adopted twenty years ago in an attempt to comply with Massachusetts' Racial Imbalance Act. Where traditional court-ordered desegregation plans often require mandatory assignments to achieve their ends, Lynn's innovative plan has two parts.

• First, children are assigned to their neighborhood school.
• The desegregative prong comes into effect only if parents wish to transfer their child to a different public school. In that case, the transfer is permitted only if it does not increase racial isolation at the sending or the recieving school.

That's it. And this simple plan has had huge impact on the Lynn school population. In a system that serves approximately 15,000 children, over a third use the transfer option to attend non-neighborhood schools each year. Of those, 3,000 are integrative transfers. The plan has succeeded in halting and reversing the trend of public school resegregation in Lynn--a trend tracked in great detail by the work of the Civil Rights Project (you can read the CRP's report on nationwide resegregation, released January 15, 2005, at http://www.civilrightsproject.harvard.edu/research/deseg/deseg05.php).

Given the limited application of the plan and its sizeable impact--given the bang for the buck, so to speak--what's the problem?

In a word, race. Plaintiffs deem the plan unconstitutional because it uses race as a tool in granting or refusing school transfers, thus instituting "racial preferences." In addition, plaintiffs argue that "no benefits flow from a racially integrated education," as their counsel stated in the hearing on Monday.

The three-judge panel that originally heard the case disagreed with the plaintiffs' assertions, ruling instead that "the defendants have made a persuasive case that a public school system has a compelling interest in obtaining the educational benefits that flow from a racially diverse student body." Comfort v. Lynn School Committee, No. 03-2415, 2004 U.S. App. LEXIS 21791, at 17 (D. Mass. Oct. 20, 2004).

But is the Lynn plan narrowly tailored to that interest? Not according to the panel, which drew on the Grutter and Gratz decisions in finding that "because the Lynn plan makes race decisive and forgoes individualized consideration of transfer applications, it cannot be deemed narrowly tailored to the community's compelling interest in the educational benefits of diversity." Id. at 19.

The Circuit Court thus found similarities in the use of race in two very different contexts: highly competitive higher-education admissions and noncompetitive K-12 transfers. In finding the latter "mechanical," the court appears to demand a more flexible system that would make use of multiple factors.

The finding spurred the following comment from David Harris, Exec. Dir. of the Boston Lawyers' Committee for Civil Rights Under the Law:

The judges seemed determined to treat this case as an affirmative action (or quota) case rather than a school assignment case. Racial segregation in schools has been illegal since Brown, and school assignments made on the basis of race to achieve integration and diversity in secondary schools have been legal since Swann. The parties and the court missed the entire point of the Lynn plan and in doing so probably endanger the MA Racial Imbalance Act. In that scenario, the children--all children--lose.

NAACP LDF Assistant Counsel Chinh Q. Le notes that in this case, as in similar cases traveling through the courts in Washington and Kentucky, voluntary school desegregation plans have been upheld at the district level and struck down at the appellate level. "Each of the plans is unique in and of itself," comments Le:

Opponents of voluntary racial integration in the K-12 context tend to ignore any differences in the policies they challenge and focus instead on the singular issue of race. But the fact that the student assignment strategies that are employed to further integration vary so greatly suggests that local officials may know better than courts or litigants how best to serve the interests and needs of the communities they represent.

As Le notes, an ironic result of these cases could be a decreasein local control over public education. If the Lynn plan is ruled unconstitutional, officials, parents, and school committees will find it harder to devise plans that will pass constitutional muster.

In the eternal and delicate balancing act between individual rights and the public interest, plaintiffs in effect argue that the right of a parent to transfer her child to a non-neighborhood (but educationally equivalent) school is more important than the public interest in racially integrated schools.

Apparently, for the plaintiffs, "separate but equal" education is acceptable as long as parental choice is perfectly preserved.

As civil rights lawyers continue to labor in the shadow of Brown, we must not lose sight of Brown's most crucial insight: separate is never equal. And as resegregation threatens the civic life of our nation, now is the time to fight for that truth.