The attorney representing black schoolchildren in Oklahoma City emphasized that school districts previously segregated by law should continue to be bound by court desegregation orders until all the negative consequences of racial separation have been remedied. Julius L. Chambers of the NAACP Legal Defense and Educational Fund acknowledged that if his argument was successful, these orders could potentially remain in effect for more than a century if the effects of segregation persisted for that long. Chambers asserted that desegregation orders must remain until all remnants of discrimination are eliminated, but admitted that the exact duration was uncertain.
However, the majority of the Justices appeared unconvinced by Chambers’ position during the arguments in the case of Board of Education of Oklahoma City v. Dowell. This case could resolve significant issues in school desegregation law, including the steps a previously segregated district must take to be considered fully integrated and whether any desegregation obligations remain after achieving that status. Contrary to Chambers’ argument, lawyers for the Oklahoma City school board and the Bush Administration asserted that districts should be released from court supervision once they have made a sustained and bona fide effort to comply with desegregation orders, and have eliminated segregation remnants to the best of their ability. Ronald L. Day, the school board’s lawyer, argued that a finding of unitary status must indicate the complete elimination of constitutional violations, resulting in the return of control to the local school board.
Solicitor General Kenneth W. Starr, representing the Administration, also emphasized the seriousness of using race as a determining factor, stating that once a desegregation plan has been in effect for an extended period, the state should refrain from continued counting by race.
The Dowell case revolves around the decision made by the Oklahoma City school board in 1985, eight years after a federal district judge declared the district fully integrated, to end mandatory busing for students in grades 1 through 4 in favor of neighborhood schools. This change led to an increase in black enrollment in 11 elementary schools, with more than 90 percent of students being black. U.S. District Judge Luther Bohannon upheld the neighborhood-schools plan in 1987, stating that it was adopted without discriminatory intent and that the re-establishment of mostly black schools was a result of housing segregation beyond the control of the school board. However, a federal appeals court overturned the district’s new student-assignment plan in 1989, holding that even after being declared fully integrated, a district cannot take actions that would result in resegregation without clear evidence of severe injustice caused by unforeseen circumstances.
During the recent arguments, several Justices focused on the implications of residential segregation for the schools.
"In part, isn’t residential segregation a result of legally mandated segregation?" questioned the Justice.
"No," replied the lawyer. "Legally mandated segregation created segregated schools, not segregated neighborhoods."
"What is the purpose?" asked Justice Kennedy to Mr. Chambers, the lawyer representing the black schoolchildren. "You claim that this new plan restores the situation to how it was when the case was filed in 1961. Are you saying that busing has not solved the issue? If the neighborhood pattern remains the same, what is the purpose?"
"The school board cannot create or continue a segregated system," responded Mr. Chambers. "Until the remnants of segregation are eradicated, the court order must remain in place."
"If after 100 years there are still patterns of residential segregation, does this court order have to remain in effect?" Justice O’Connor inquired.
"It must remain until all traces of segregation are eliminated," replied the lawyer. "Currently, 40 percent of the district’s black elementary students attend segregated schools."
"If busing did not make a difference in residential segregation after a quarter-century, there is no reason to believe it will make a difference in another quarter-century," argued Associate Justice Antonin Scalia.
"It certainly helped in integrating schools," Mr. Chambers replied.
"So you claim this is not a temporary solution, but a permanent one," Justice Scalia challenged. "That wasn’t the original intent of busing."
One of the most contentious exchanges occurred when Associate Justice Thurgood Marshall, the only black member of the Court and the lawyer who won the landmark desegregation case Brown v. Board of Education, questioned Mr. Starr.
"In Oklahoma City, you say the dismantling of the dual system was done, but disadvantaged African-American children are still in the same schools," Justice Marshall pointed out.
"The dismantling was carried out in good faith compliance with the plan," responded the Solicitor General.
"But the schools are still segregated," Justice Marshall countered.
"You don’t believe that segregation is unconstitutional," Justice Marshall stated.
"With all respect, that is not our position," Mr. Starr replied.
Justice Marshall pursued a similar line of questioning with the lawyer representing the school board.
"Is the school board harmed if it is required to operate its schools according to the Constitution?" he asked. "They are obligated to adhere to the Constitution, yet they object to doing so."
"They do comply with the Constitution," Mr. Day insisted.
"If you remove the court order, what assurance is there that they will continue to follow the Constitution?" the Justice asked.
"They cannot take any action that discriminates based on race," Mr. Day responded.
"So you would have to file a new lawsuit?" Justice Marshall asked.
"Yes, sir," Mr. Day replied.
During the argument last week, there were only eight Justices on the bench. If they find themselves evenly divided, they may schedule the case for reargument later in the term to allow the newest member of the Court, David H. Souter, to cast the deciding vote. The Court is expected to announce its decision in the case by next June.
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