Will Brown Go Down?

Last week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Ky., and Seattle, Wash., the court's eventual decisions will directly affect hundreds of other school districts across the country that use race in some fashion in determining which students will attend which schools.

The decisions will also go a long way towards revealing whether our newly reconstituted court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the court's take on the highly contested legacy of Brown v. Board of Education.

Brown v. Board of Education is surely the most important legal decision of the 20th century. Its holding alone -- declaring unconstitutional the state-mandated racial segregation of public schools -- was momentous. But its meaning was larger still: Brown stands as a huge milestone in the long American journey to overcome the original sin of slavery and redeem the founders' promise of equality for all.

Although Brown generated enormous controversy and furious backlash in some quarters when it was first decided, the decision (if not every aspect of its analysis) has, by now, become almost universally accepted as constitutional gospel.

But for all its importance, and for all the praise it now receives from public officials and aspirants to judicial office, Brown's historical legacy is still very much in flux. After more than 50 years, we are still rethinking and reshaping what we believe Brown actually means -- both as a legal precedent and, more broadly, as the foundation stone for our constitutional commitments on the issue of race.

The leading commentator on Brown, Richard Kluger, described the opinion's moral and historical significance as "nothing short of a reconsecration of American ideals" -- rightly so. Yet we are still working out which ideals, exactly, the decision actually champions.

I remember my constitutional law professor, Burke Marshall (who had been head of the Civil Rights Division in the Kennedy administration) putting the following questions to me:

Does Brown mean only that states cannot require blacks and whites to go to separate schools?

Or, when Brown says that separate educational facilities are "inherently unequal," is it mandating some form of actual integration by creating a right for black school children to attend a racially mixed school?

Or, did Brown mean something in the middle? Did it mean that, on the one hand, states had to remedy their own affirmative acts of segregation by affirmatively eradicating the effects of past segregation, but, on the other hand, government did not otherwise have to provide for racially balanced school systems?

Or, alternatively, is Brown, when read against the backdrop of America's tragic history of race relations, best viewed as calling for a "color-blind" Constitution -- one in which government may basically never use race as a factor in its decision making, even when the government is seeking to help minorities instead of stigmatizing them?

Every one of these positions can be plausibly defended as a way to interpret Brown. In this sense, Brown is something of a Rorshach test for one's views about the nation's complicated history of racial oppression, and its attempts to rectify the consequences of this past.

Now, the new Roberts court -- as deeply divided about this issue as about any other, and including two new justices -- is about to take this test again.

The facts of the cases before the court

The first case, from Kentucky, involves what is known as a "managed choice" plan -- one in which the school district actively seeks to maintain racial balance in its schools. Jefferson County, Ky., which once ran a segregated system, administers its managed-choice system in a way that takes into account student-parental choice, while also ensuring that each of its schools maintains a minority enrollment of between 15 percent and 50 percent. The district as a whole is made up of roughly one-third minority students.