IN A TWIST OF FATE and legal protocol, the arguments made in an amicus brief in defense of school busing and racial quotas by Clinton-era civil rights enforcer Bill Lan Lee will soon go before the Fourth Circuit as the position of the Bush Justice Department. The case is Swann v. Charlotte-Mecklenburg Board of Education, and if Lee’s brief is not withdrawn, President Bush will have failed his first test in civil rights.
The legal brief defends Charlotte, North Carolina’s 30-year school-busing regime from a 1997 lawsuit brought by the parents of then 6-year-old Cristina Capacchione. The Charlotte-Mecklenburg school district refused Cristina’s admission to a gifted program because all of the slots reserved for “non-black” children had been filled. They were under a 30-year-old court order, the school district argued, to implement just these types of quotas. Additional parents joined the lawsuit because of their dissatisfaction with having to bus their children to schools half an hour or more outside of their neighborhoods.
After an eight-week trial, district judge Robert Potter ruled in favor of the children and declared the school district “unitary” — this is, free from any remaining effects of prior racial discrimination. Potter’s ruling to end court supervision and busing in the district was especially noteworthy because it was in Charlotte in 1969 that court-ordered busing came to life. Within a few years, federal judges across the country imposed similar desegregation orders on scores of cities.
The school district had argued that it couldn’t avoid practicing racial discrimination against black children, even though the school board is split nearly evenly between blacks and whites, and blacks hold many important administrative positions. This self-incriminating argument, nicknamed the “Doofus Defense,” is perhaps the best illustration of the school system’s deep desire to retain quotas.
Nevertheless, Judge Potter found that the school system had complied in good faith with the earlier desegregation orders. He further stated that there was no indication that Charlotte schools “will return to a de jure segregated system in the future” and that any lingering imbalance in the racial makeup of schools was due to “demography and geography,” not discrimination.
A little over a year later, a three-judge panel reversed Potter’s ruling. In a split decision, it ruled that Charlotte-Mecklenburg hadn’t fulfilled its desegregation mandate. The majority on the appeals panel was persuaded by the Clinton Justice Department’s brief, authored by former acting assistant attorney general Bill Lan Lee. They found especially compelling Lee’s argument that even a unitary, i.e. unracist, school district has a compelling interest in racially integrating schools by the use of quotas and forced busing.
Does this sound familiar? It should. In a handful of university admissions cases from Michigan to Texas, Clinton Justice officials argued basically the same thing. In these cases, they claimed that diversity itself was the “compelling interest” that obliged schools to maintain racial preferences in selecting students. In the Charlotte case, the Justice Department argued and the appeals court agreed that the possibility that the school system’s “diversity” would otherwise decline was reason to continue busing and admissions quotas.
Last month, the U.S. Court of Appeals for the Fourth Circuit granted the parents a full panel review of the case, portending to many observers the reinstatement of Potter’s ruling. Oral arguments will be made in Richmond on February 27.
Generations after intentional discrimination and segregation have ended, busing continues for the sake of diversity. This is a terrible moral and legal mistake. Supreme Court Justice Clarence Thomas has written that the Constitution does not give courts and school systems the right to mandate and enforce integration for integration’s sake. “This misconception has drawn the courts away from the important goal in desegregation,” he wrote. “The point of the Equal Protection Clause is not to enforce strict-mixing, but to ensure that blacks and whites are treated equally by the state without regard to their skin color.”
But the argument for ending busing was probably best summed up by a Charlotte NAACP board member and business executive, who stated, “My daughter does not need to sit beside a white person to learn.”
The stakes in the Charlotte-Mecklenburg case are huge. Today, nearly 400 school districts are operating under federal court decrees that mandate race-conscious policies such as busing, bizarre school attendance zones, racial caps on magnet schools, and the like. A reversal of the three-judge panel’s ruling would return control of the school system to the local school board and perhaps hasten the day when racial preferences and classifications like these come to an end.
Attorney General Ashcroft can put Bush’s “compassionate conservatism” into action by withdrawing the Justice Department brief. There is no reason to force another generation of children to drive past neighborhood schools in the name of a failed social policy and legal theory.
Edward Blum is director of legal affairs at the American Civil Rights Institute.
