Equal but separate

"Clearly, we need better race-neutral alternatives. Instead of spending zillions of dollars around the country to place a black child next to a white child, let's reduce class size. All the schools are equal. We will no longer accept that an African-American majority within a school is unacceptable." -- Teddy Gordon, a Louisville attorney who represented the plaintiffs. (AP.)

And this is not advocating a rollback of Brown how? "Separate but equal but separate" is the same thing as "separate but equal," and I thought it had been discredited. I don't know a damn thing about the narrow interpretations of the various precedents--the legal side--but I do see that the practical effect is to undo the undoing of Plessy.

A few weeks ago, I came across Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189 (1973), a case dealing with school desegregation where a concurring justice--Powell--argued that it was time to eliminate the legal difference between de facto and de jure segregation. [Edit: It's also the case mentioned in this Slate discussion.] His argument starts from a premise very relevant to today's decision--Brown stands for more than just what it says. He wrote,

In my view we should abandon a distinction which long since has outlived its time, and formulate constitutional principles of national rather than merely regional application. When Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), was decided, the distinction between de jure and de facto segregation was consistent with the limited constitutional rationale of that case. The situation confronting the Court, largely confined to the Southern States, was officially imposed racial segregation in the schools extending back for many years and usually embodied in constitutional and statutory provisions.

Id. at 219-20. Powell was right about de facto segregation being just as bad as de jure, and he was right about how Brown's meaning shouldn't be limited to the circumstances it addressed. As he noted,

The Negro children in Cleveland, Chicago, Los Angeles, Boston, New York, or any other area of the nation which the opinion classifies under de facto segregation, would receive little comfort from the assertion that the racial make-up of their school system does not violate their constitutional rights because they were born into a de facto society, while the exact same racial make-up of the school system in the 17 Southern and border states violates the constitutional rights of their counterparts, or even their blood brothers, because they were born into a de jure society.

Id. at 229-30 (quoting Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 148 (CA5 1972) (en banc), itself quoting United States v. Jefferson County Board of Education, 380 F.2d 385, 397 (CA5 1967) (Gewin, J., dissenting)). (There's also some interesting quoted material about Southern (de jure) vs. Northern (de facto) segregation, which reminds me of a previous debate we've had, but that's neither here nor there.)

That's the fight we're having now. It's still not going the right way.

I'll get back to Bloomberg next time.