ON May 17, 32 years ago, the United States Supreme Court, in a unanimous and radical verdict, clobbered the longstanding doctrine of ``separate but equal'' in public education. In that decision, Brown v. Board of Education, the court placed the US Constitution on the side of blacks' efforts to outlaw state-sponsored racial segregation in the public school system. The court held that separate schools were, for the minority group child, ``inherently unequal.'' Today, as a result of that ruling, many thousands of white and black children, in Southern states in particular, have benefited from an integrated school experience. And blacks, in every section of the country, gained admission to once exclusively white colleges and professional schools. Before the Brown decision, it was widely believed that states had exclusive jurisdiction over education and could not be interfered with by federal courts. But blacks convinced the Supreme Court that the Constitution gave blacks federal rights of equality with whites which states could not, under the rubric of ``states' rights,'' vitiate.
Ironically, both the ``states' rights'' doctrine and segregated public education, despite 32 years of constitutional litigation, refuse to die. Indeed, federal officials no less than Attorney General Edwin Meese have revived ``states' rights'' as a constitutional theory when arguing for federal judicial restraint in the core ``social issues'' involving the federal rights of blacks to desegregation. And even black organizations have begun to rethink the integration strategies of the past. More than a few black spokesmen have urged blacks to accept their ``separateness'' and to build political and economic strength from ``within the black community.''
Even the National Association for the Advancement of Colored People, the standard-bearer of integration, has questioned the legal effort to desegregate public black colleges. NAACP leaders recently held a private session suggesting more spending emphasis in such areas as crime, teen-age pregnancy, and world peace, and less on civil rights litigation.
The bulk of the NAACP's litigation over the years has been in prosecuting segregation cases. The back of Jim Crow in Southern schools did not break easily. Yet at a time that states in the North and West are operating a racially segregated public school system -- a biracial system -- either the resources or will to bring these states to account is on the wane. Moreover, the Supreme Court has failed to extend its desegregation mandate beyond remedying strictly de jure segregated schools. And even in those circumstances, the court has pointedly refused to always include the schools in lily-white suburbs in plans to desegregate inner-city black school systems. Thus, ``good faith'' compliance by local school authorities with the strict letter of the law has become the means for effective evasion of desegregation of urban schools.
But unlike their brethren in the South, Northern school officials refused to be crude about their resistance. They have said they desire integration. But, feeling no pressure from black rights groups, and getting enormous negative public reactions to ``forced busing'' from whites and blacks, the liberal educators up North can afford complacency and inaction. They say they will obey the law, and they issue pious policy statements deploring an intensely segregated society that makes school integration unfeasible.
As a consequence, desegregation in Northern cities with majority black populations has eluded most children. Black students, by and large, attend ``their'' public schools, and whites attend theirs. This is a functional repeal of the Brown decision. With that realization, cynicism and despair have set in among this generation of blacks. Their spokesmen acknowledge the ``inevitability'' of separate schools and seek black control of them.
So society has returned to ``separate but equal'' in the field of public education. There no longer exists a consensus that separate schools are harmful to minority children, who are, after all, the majority in many urban schools. And because the desegregation mandate was never taken to heart, it became a hornet's nest for litigators on both sides.
Still, there is a way out. The Supreme Court will again have to give leadership, however. It can finally observe that societal discrimination against blacks is manifested by the mere existence of ghettos and thereafter expand the legal notion of de jure segregation, the prerequisite for a court-ordered remedy. The court must also simultaneously lift the arbitrary district lines between suburb and inner city so that interdistrict busing can begin to overcome extensive patterns of residential segregation. When the court takes such bold and radical steps, a new civil rights movement will begin -- one that points to an end to racial isolation as a way of American life. And then people of all colors will decide on which side of ``the law'' they truly want to be.
Michael Meyers is executive director of RACE Inc., Research and Advocacy Center for Equality, and a former assistant director of the National Association for the Advancement of Colored People.