Wednesday, September 5, 2012

Calling Clarence Thomas

The schools trial this week could just be a warm-up for the main event.

Posted By on Wed, Sep 5, 2012 at 12:32 PM

Let's face it. This divided country needs a fresh U.S. Supreme Court statement on school desegregation on the order of Brown v. Board of Education (separate is unequal) in 1954 or Swann v. Charlotte-Mecklenburg (busing) in 1971. Memphis v. Shelby County is as ripe a case as there is.

The little sideshow scheduled to start Tuesday in Judge Hardy Mays' courtroom is not going to settle anything; it will only prolong it. Mark Norris and his mates in suburbia and in Nashville will have a Plan B, C, and D in about 15 minutes if Mays decides the enabling legislation for municipal school districts is unconstitutional.

Same goes for the settlement last month of a 47-year-old desegregation case involving the Fayette County School Board and the NAACP. The settlement calls for "controlled choice" and racial balancing in each school. The Justice Department's civil rights lawyer and U.S. attorney Ed Stanton III hailed it as an important landmark, but Fayette County has a total of 3,474 students in public schools, or about as many as two Shelby County high schools.

If the Justice Department is looking for landmarks, it should pick on someone its own size — like us.

In another federal desegregation case this summer in Hot Springs, Arkansas, a judge declared that the Constitution's equal protection clause doesn't prohibit white kids from moving to majority-white magnet schools. But he concluded his ruling with this thought: "The court fully expects this case to be appealed in view of the important issues presented in this case."

And in a Nashville case this year, parents argued that a rezoning plan intentionally moved black students out of higher-performing schools to racially isolated, subpar schools. U.S. district judge Kevin Sharp disagreed: "While the school board's action caused a segregative effect, the court is unable to conclude that the school board adopted the plan with a segregative purpose. Therefore, it passes muster under federal constitutional principles of equal protection."

The main event in Memphis comes up in November when Mays will turn to the Shelby County Commission's claim that municipal school systems would be unlawfully segregated. That decision, too, seems likely to be appealed in view of the importance of the issues.

Meanwhile, Memphis and Shelby County are spending time and money on non-solutions that are half-baked (municipal schools and the unified school system), half-successful (charter schools), and half-crazy (subpoenas for the identities of commenters on The Commercial Appeal's website). The unified system is supposed to be up and running a year from today.

Greater Memphis is the ideal place for a 21st-century statement from the Supreme Court on desegregation and resegregation in urban school districts. Our history includes the sham of gradual integration in the 1960s, leading to Plan Z and forced busing and white flight in the '70s, Frayser residents burying a school bus, a "unitary" Memphis system where 90 percent of black students attend all-black schools, another "unitary" suburban system that is majority white, and now the largest school system merger in post-integration American history.

Plan Z, hatched in 1972, was supposed to be the "terminal" desegregation plan. Instead, the school systems and the courts went through the alphabet and back again: controlled choice, magnet schools, optional schools, neighborhood schools, new schools, shared city and county schools, racial balancing to a 15 percent standard, consent decrees, special masters that never materialized, and the biggest concentration of Gates Foundation money, charter schools, and Teach For America in Tennessee.

And no one has any idea what the unified school system will look like.

The Supreme Court stated its position on school segregation in a 5-4 decision in 2007 that involved the school systems in Seattle and Louisville.

Here's how Justice Clarence Thomas, siding with the majority, defined public school segregation:

"In the context of public schooling, segregation is the deliberate operation of a school system to 'carry out a governmental policy to separate pupils in schools solely on the basis of race.' ...

"However, racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us."

Since then, President Barack Obama has appointed two new Supreme Court justices — Sonia Sotomayor and Elena Kagan. Both replaced justices who voted with the minority in the Seattle-Louisville school desegregation case. The next Supreme Court appointment could be pivotal.

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