Activist Justices Target Diversity

A quarrelsome claque of five right-wing justices on the Supreme Court of the United States has abandoned the court's historic commitment to integration. These arrogant men scorned judicial precedent -- overturning the historic Brown vs. Board of Education without having the honor to admit it -- and ignored both history and today's reality. Outlawing voluntary local school district efforts to increase diversity in the schools, the court imposed court-ordered resegregation. Once more, men in robes stand in the schoolhouse door, only this time their robes are black, not white. Where the court once spoke with one voice on ending segregation in schools, new Chief Justice John Roberts was willing to summon merely the right-wing rump of the court to overturn 50 years of precedent, decades of struggle and simple common sense.

Roberts argues that a country with a history of slavery, of segregation and of ingrained discrimination has no compelling interest in diversity, which he burlesques as "racial balancing." He dismisses racial diversity as a "verbal formulation."

Roberts argues that the court's ruling in Brown ended the day when "schoolchildren were told where they could and could not go to school based on the color of their skin." This reveals a stunning divorce from reality. The court's historic ruling in Brown outlawed segregated schools, but was met with massive resistance. Decade after decade, courts had to step in to force school boards to end legally enforced segregation. How did the courts know that the school boards were in violation? Because they counted -- they "used race" as a factor in determining reality. Now the court says that is unconstitutional.

Stunningly, the court's right-wing gang strikes down voluntary plans devised by conscientious school boards to increase diversity in schools. In the case of Louisville, a court-ordered plan was dissolved. The school board chose to continue something similar. According to the gang of five, what was constitutionally mandated when ordered by the court became constitutionally offensive when adopted voluntarily by the local school board. In Seattle, a concerned school board, understanding the importance of diverse schools, adopted its own plan. The right-wing rump of the court orders it to cease and desist from seeking integration.

This is an act of blatant judicial activism by five justices. As Justice John Paul Stevens wrote in dissent, "No member of the court I joined in 1975 would have agreed with today's decision."

No one should be fooled. This opinion calls into question all voluntary programs promoting diversity. Affirmative action in employment, minority contract set-asides, the military's commitment to diversity and more are at risk.

We've seen this form of historic turn before. After the Civil War, efforts to give freed slaves basic rights were met with lynchings, enforced by the terrorist gangs of the Ku Klux Klan. That massive resistance was finally entrenched into law by the Supreme Court in the infamous Plessy vs. Ferguson case that laid the basis for legal segregation.

Unless the decision of this gang of five is met with massive resistance by people of conscience, we may be facing a similar turn. Just as America grows more diverse, and as a global economy and global terrorism make integration more important, these five willful justices stand in the schoolhouse door. We must make certain that dissenting Justice Stephen Breyer is right when he writes that this decision is one "the court and the nation will come to regret."

(c) 2007 The Chicago Sun Times

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