The Supreme Court "races" on.

• Author: Bresler, Robert J.
• Position: STATE OF THE NATION

IN ONE OF ITS GREATEST MOMENTS, the Supreme Court in Brown v. the Board of Education of Topeka (1954) put to rest the pernicious idea that the state can use race in deciding how citizens can enjoy the equal protection of the law. The Court made it clear that government cannot deny a child the opportunity to attend a public school because of race, known as de jure segregation. Racial imbalances that occur as a result of the private decisions of citizens, such as housing patterns and population shifts, de facto segregation, were not the subject of Brown, nor could they be. The Equal Protection Clause of the 14th Amendment, upon which Brown was based, applies to state action, not private decisions. When Congress passed the Civil Rights Act of 1964, it understood this distinction. In eliminating discrimination in privately owned public accommodations such as restaurants, theaters, and sports arenas, Congress relied upon its power under the Commerce Clause, not the Equal Protection Clause.

The Brown Court did not use the explicit language of Justice John Marshall Harlan that, "Our Constitution is color blind," in his dissent in the notorious Plessy v. Ferguson (1896) decision upholding segregation. It did make clear that the use of racial categories in determining who can attend what school was antithetical to the Constitution. In subsequent decisions, the Court allowed the use of race in school assignments only to remedy the effects of de jure segregation. In June, in Parents Involved in Community Schools v. Seattle, the Court struck down plans of the Louisville and Seattle school systems to assign students to schools on the basis of race in order to create racial balance. De jure segregation was not present in these cases since Seattle never had segregated its schools, and Louisville, under court order, already had eliminated any vestiges of state sanctioned segregation. In his majority opinion, Chief Justice John Roberts wrote, "Accepting racial balance as a compelling state interest would justify imposing racial proportionality throughout America, contrary to the Court's admonition that this is unconstitutional."

As soon as this decision was announced, The New York Times rushed to judgment, stating, "The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation's schools to integrate. Yesterday, the Court switched sides and told two cities that they cannot take...