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In 1954, William Coleman Jr. sat next to Thurgood Marshall as he argued Brown v. Board of Education before the Supreme Court. In the same chamber on Dec. 4, Coleman, now 86, watched as the arc of the landmark Brown decision took a stunning turn. He heard the Brown decision being invoked as a possible reason for striking down modern-day efforts to keep public schools integrated. “I was shocked,” said Coleman, now senior counselor at O’Melveny & Myers in Washington, D.C. “It’s the most ridiculous thing in the world.” One of the exchanges Coleman was reacting to was between Chief Justice John Roberts Jr. and Michael Madden, the lawyer defending a Seattle program that uses race as a “tiebreaker” in assigning students to popular high schools. Roberts said that in Brown, the Court found that because students were assigned to different schools “on the basis of race, it violated equal protection.” How, Roberts asked skeptically, could that be distinguished from programs that use race in school assignments to achieve diversity? “Because segregation is harmful,” replied Madden. It was the right answer, forcefully delivered, from the point of view of civil rights lawyers in the packed courtroom. But it was a rare bright spot in a bleak two hours of argument in which the world seemed upside down to Coleman and others steeped in the civil rights movement. “The difference between Brown and these cases is night and day,” said Coleman. Speaking of the Court in general, he added, “They don’t live in the United States that I live in.” Ted Shaw, director-counsel of the NAACP Legal Defense and Educational Fund, was also in the Court chamber on Dec. 4. And he, too, was stunned that Brown had been “hijacked” by the opponents of race-conscious programs aimed at achieving diversity. “If they [the Court] are inclined to view these voluntary measures in the same light as segregation, and any use of race is constitutionally suspect, then God help us,” said Shaw. “I’m not going to predict defeat, but it’s an uphill fight after what we heard today.” Shaw’s ounce of hope that the arguments don’t portend an awful outcome suggests it may be premature to call the oral argument in the cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education a major turning point for the high court. Race-conscious programs have survived defeats in the past, and, under some scenarios envisioned after the oral arguments, one program or the other might yet be upheld, if grudgingly. But it was an undeniably rough day for mainstream civil rights advocates. Facing a Court with two new justices � both, it appeared, hostile to race-conscious programs such as those at issue � they were looking for signs of hope, and few were forthcoming. �The most poorly argued case’ At first it seemed to Coleman and his fellow civil rights advocates that Justice Anthony Kennedy, from his swing-vote position, was giving positive signals. He repeatedly asked whether a school board could choose the site of a new school with the goal of achieving racial balance in light of residential demographics. Harry Korrell, representing the Seattle parents opposed to the diversity program, said that if racial equality was the sole goal, it would be unconstitutional. But he allowed that if race was just one of several factors, it might be permissible if analyzed in the same way the Court has handled race-based redrawing of voting districts. Solicitor General Paul Clement, who also argued against the race-conscious programs, said offhandedly that a decision on where to build a school would be constitutional because it was not, strictly speaking, a racial classification. Clement may have allayed Kennedy’s concern, and for the rest of the argument, Kennedy’s comments telegraphed near-certain opposition to the school programs. “If we, for the first time, say that a system that has achieved unitary status . . . can turn around and use individual skin color . . . . We’ve never said that,” Kennedy exclaimed at one point. “That takes us on a very perilous course.” From the audience, Coleman was disappointed that nobody on the other side � his side � forcefully answered Kennedy’s question about race-conscious siting of public schools. “Someone should have said, �Certainly, you can do that.’ ” The only voices in favor of the race-conscious programs were the two school board attorneys � Madden for the Seattle school board, and Francis Mellen Jr. for Louisville schools. Both attorneys are white. “I was disturbed that in a case involving the rights of black people to get an education, nobody was representing black people,” said Coleman, who, in 1948, was the first black law clerk at the Supreme Court. “None of them had the training and background in this area. It was the most poorly argued case I’ve ever seen.” Coleman added wistfully that the prospects for saving the race-conscious programs might have been better “if Thurgood Marshall had been there, or Jack Greenberg, or myself.” Greenberg, now a professor at Columbia Law School, succeeded Marshall as director-counsel of the NAACP Legal Defense and Educational Fund in 1961. In fact, the fund had asked for argument time in both cases, but its motion was denied on the same day that Clement’s motion seeking argument time on the other side was granted. That is not uncommon � the solicitor general is usually the only friend-of-the-court party allowed argument time. But Shaw, like Coleman, said afterward that having a civil rights voice before the Court might have helped. Instead, it was left primarily to Justices Stephen Breyer, the son of a school board attorney, and Ruth Bader Ginsburg, a one-time American Civil Liberties Union lawyer, to try to salvage what they could from what was looking like a train wreck. Almost desperately, Breyer reminded his colleagues about long-standing Court precedents, ranging from Swann v. Charlotte-Mecklenburg Board of Education to Cooper v. Aaron to the Slaughterhouse cases of 1873 � all of which, in his view, support the use of race-conscious programs to achieve public school diversity. At one point, Breyer corrected Mellen, who had seemed to acknowledge that the Court never said the use of race was permissible in the public school setting, rather than in higher education. “I thought the Court had explicitly said that in Swann,” Breyer exclaimed. Swann is the 1971 ruling that allowed the use of busing and racial balancing to eliminate lingering segregation. “How could the Constitution,” Breyer also said, “tell the school board it cannot make that effort anymore, it can’t do what it’s been doing, and we’ll send the children back to their black schools and their white schools?” Ginsburg weighed in after Roberts cited Brown in his exchange with Madden. “The question of . . . whether integration, using racial integration, is the same as segregation, it seems to me, is pretty far from the headlines that attended the Brown decision,” she said. “There were, at last, white and black children together on the same school bench. That seems to be worlds apart from saying we’ll separate them.” Justice David Souter also weighed in, pointing out that the only harm Seattle or Louisville students suffer because of the programs is that they might not get to go to their first-choice schools. But unlike in university affirmative action programs, which might result in qualified white students not gaining admission at all, the elementary and secondary schools will still educate all students in the district. “The principal benefit is the education, not the choice of schools,” Souter said. Is it benign? From the other side, Justice Antonin Scalia seemed to be egging Roberts on, asserting there was no principled way to distinguish between the “benign” use of race to achieve diversity and the more sinister use of race to discriminate. In one exchange that disturbed civil rights advocates in the audience, Scalia asked about the racial composition of the Louisville school board. “How do we know these are benign school boards?” Scalia asked. He also suggested that a black-dominated school board might be seeking to use race in distributing students not to achieve diversity but for the “racially selfish reason” of getting black students into better white schools in the district. Later, Scalia seemed incredulous at Mellen’s point that the Louisville program enjoys widespread public support. “Black and white alike?” Scalia asked dubiously. “How do we know that?” Mellen cited surveys and held to his position that “this case presents a story of a board of education that has replaced a desegregation decree with a student-assignment plan that works.” He was trying to appeal to Scalia’s oft-stated desire to defer to democratically chosen decision makers instead of judge-made law, but it did not appear to work. Meanwhile, the lawyers challenging the race-conscious programs seemed to be landing solid punches with a Court that seemed more and more sympathetic as the two hours wore on. Korrell said the use of race as a factor “strikes at the heart of the equal protection clause, which commands that government treat people as individuals, not simply as members of a racial class.” Teddy Gordon, representing the Louisville parents who challenged the school board’s use of race, said race-based remedies are no longer appropriate once past desegregation programs have ended. “Once you’ve achieved the unitary status, you no longer get to carve out that exception to the 14th Amendment,” Gordon said. Clement also spoke of the “lessons of history” that warn against allowing local school boards to use racial classifications. He also sought to reassure the Court that local schools could still adopt measures that could have the effect of achieving diversity, so long as racial classification is not used. “In the real world,” Clement said, race is rarely the only factor in such decisions. Silent during the entire two hours was Justice Clarence Thomas, the Court’s only African-American member. In past rulings and speeches, Thomas has made it clear he opposes affirmative action and thinks it stigmatizes blacks. He has also argued that black students don’t necessarily get a better education just because white students are in their midst. At one point late in the arguments, Thomas leaned forward as if to start asking a question or making a comment, but he apparently thought better of it and leaned back again, allowing the clock to run out on arguments in what could be the most important civil rights cases in years. Perhaps Thomas made the calculation that a majority of his colleagues were finally seeing it his way, anyway, and he did not need to say anything. That seemed to be the view of the groups that oppose the race-conscious programs. Sharon Browne of the Pacific Legal Foundation, a leading member of the legal team, said afterward, “The Court’s reaction to the arguments today strongly indicated that they plan to remind school districts around the country they are not free to ignore the guarantees of equality in the Constitution’s equal protection clause.” Inside the Court, Louisville lawyer Gordon had made the same point a little differently. Gordon told the justices, “May this day be the embryonic beginning of Dr. King’s dream, as paraphrased, that all children are now judged by the content of their character and their education, not by the color of their skin.” Gordon, whose words ended the two hours of argument, was the only lawyer to mention Martin Luther King Jr. Tony Mauro can be contacted at [email protected]

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