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FARAI CHIDEYA, host:

From NPR News, this is NEWS & NOTES. I'm Farai Chideya.

A half a century ago, the Supreme Court outlawed public school segregation in Brown v. Board of Education. Now the high court is back for another look at the same issue. Yesterday, justices heard arguments in cases from Seattle, Washington, and Louisville, Kentucky.

In both cities, several white parents sued when their kids were denied admission to specific schools, they argue, because of race. Yesterday, the court heard oral arguments. Justice Ruth Bader Ginsburg asked how schools could achieve diversity without using race in student selection.

Justice RUTH BADER GINSBURG (U.S. Supreme Court): You say you can't use a racial means, but can you have a racial objective, that is you want to achieve balance in the schools.

Unidentified Man: Justice Ginsburg, our proposition is that that is prohibited by the Constitution, absent, past discrimination.

CHIDEYA: The Supreme Court is expected to issue a decision next year. Now joining us is Harvard law professor Charles Ogletree, executive director of the Charles Hamilton Houston Institute for Race and Justice. He is at Harvard in Cambridge, Massachusetts.

We've also got on the phone with us, Sharon Browne, principal attorney with the Pacific Legal Foundation in Sacramento, California. That group filed briefs in both cases. Welcome to you both.

Ms. SHARON BROWNE (Principal Attorney, Pacific Legal Foundation): Thank you.

Professor CHARLES OGLETREE (Executive Director, Charles Hamilton Houston Institute for Race and Justice): Hello, Sharon and Farai.

CHIDEYA: So both of you, I understand, were at the Supreme Court hearings yesterday. I'm going to start with you, Ms. Browne. You are presenting briefs in both of these cases. Overall, what do you make of the arguments?

Ms. BROWNE: Well, I found that the court is signaling very clearly that it intends to end race-based enrollment in public schools in this country because they said that it is actually using race instead of looking at students as individuals. And there's no reason except for (Unintelligible) segregation to use race as a remedy when there's a constitutional violation, such as what happened in Brown vs. Board of Education.

And it was interesting that the court went back to Brown vs. Board of Education and said that that case, the school district used race and assigned students to public schools. And this is not the same situation as it is here.

And in that case, what the board's - what the court's ultimate goal was was to achieve a system where students were assigned to public schools without regard to their race. And here the school districts are ignoring that mandate.

CHIDEYA: Let me follow up with you, Ms. Browne, before I get to Prof. Ogletree. This may be a kind of broad analogy, but I think of chemotherapy for cancer. It's a form of poison and yet it's also a cure. Can you cure a race-based ill without resorting to looking at race-based solutions?

Ms. BROWNE: Not unless there is an intentional discrimination on the part of the school district. What the court did seem to be looking at are race neutral alternatives. For example, Justice Kennedy was concerned, can you cite a school and a location which would draw students that would provide a racial mix into that school?

And the answer, of course, would be yes, as long as the school district is not using race in deciding of the schools. There's many other factors that go in deciding of a school. Another one would be, as Justice Scalia mentioned, magnet schools. There is no reason for the school districts to require the students to be assigned to the magnet school to achieve a racial mix.

Instead, what you can do is create the magnet school, then have the students come to the magnet school. What I think the court was recognizing, all the justices recognized, is that parents are going to send their students to the school that best meets their educational needs. And that could be a magnet school. It could be a school across town, if it has the right program, instead of the neighborhood school.

CHIDEYA: Let me get to Professor Ogletree. First of all, give us your impressions of what was going on. And also, since the court has changed so much recently, who were the key players in asking questions during these arguments?

Prof. OGLETREE: Thanks, Farai. A couple of points. I was at the Supreme Court as a law student in 1978 when they argued the Bakke case. I was there in April 1st, 2003, when they argued the Michigan affirmative action case. I was there yesterday. I have to say that yesterday was the most sobering experience I've ever had at the Supreme Court in terms of the court turning back on the issue of race.

And what has changed in my view is not the law or the Fourteenth Amendment but the composition of the court. This court did not agree to hear these cases when they were first filed earlier. They heard these cases after Justice Sandra Day O'Connor had retired and Chief Justice Rehnquist passed away. And Chief Justice John Roberts joined the court and so did Samuel Alito.

So what has changed is the composition of the court, and that has changed the principles. I think what I saw yesterday was the beginning of the end of any serious effort to end segregation in public education in America. And what we will see, in my opinion, that Justice Kennedy seems to be the lead advocate, and is a system that will revert to the old segregated public education. And all children, not just black and brown children, but all children will suffer as a result of what I think will be the outcome of yesterday's argument.

CHIDEYA: What really is the line of reasoning in this case? It seems to me that there's some talk of what is a race-based problem and some talk of what is a race-based solution. But how does that play out in what the government's role is and what is really being decided in these cases?

Prof. OGLETREE: It's very disingenuous. When you think about it, the government looking at Brown said, you know, we have two separate school systems that excludes people on the basis of their race, and that blacks can't go to the same school with whites. That's not what we were talking about here. We're talking about segregation in places like Seattle and Louisville. Louisville actually was under a consent decree because it had a history of segregation against the black children. And that's what these school boards, trying to deal with local issues, both tried to do.

And every member of the Supreme Court yesterday supported the laudable goal of integration, and yet it was amazing that it seems that the majority of the justices can't seem to find any constitutional way to make sure that black, and brown, and white children all have a quality education.

I think it was a very sobering argument yesterday. And I think we're going to rue the day that the court says we're race-blind. We're going to be color blind, when in fact that's going to lead to the re-segregation of public education not just in the South but throughout America's public school systems. And children, mainly black and brown, will suffer greatly.

CHIDEYA: Ms. Browne, is there anything wrong with voluntary desegregation programs, integration programs? I mean some of these districts are saying, you know, arguably, that they are willing to shoulder the burden of doing this.

Ms. BROWNE: Well, I was second chair in the Meredith case yesterday. And I'll have to agree with Professor Ogletree that it was a very sobering experience being at the court. But I found it also very uplifting because the school districts can do voluntary integration measures.

There are, as I said, the assignment plans where magnet schools are placed in schools that will draw students of racial mix. In California, we have Proposition 209, which ended all types of race-based methods in California's public schools. And what we have seen is that the public schools has really drawn and improved their public education system because there's no longer race preferences available to them.

And so they've actually gone into their schools, they've improved the standards. We have a higher graduation rate. We have a lower dropout rate. We have more students that are now qualifying for the universities and the state universities. And we have our state universities actually going into the communities, into inner-city schools, and creating programs for those high school students so that they develop the skills necessary to apply to our university system.

So California is a success story on how you can use a colorblind public education system and provide the necessary educational opportunities to every single child, not just some of the children as in Seattle, or not forcing a 5-year-old child to be bussed 90 minutes as in Meredith.

CHIDEYA: Prof. Ogletree, let me ask you this. From what I understand of California, especially once you get to the UC level, the - you know, UCLA had a tiny number of black incoming freshmen. I'm not sure exactly what the success story is in California. What's your understanding of this?

Ms. BROWNE: Well…

Prof. OGLETREE: It was not a position…

Ms. BROWNE: If you have to remember that in California -

Prof. OGLETREE: Were you asking me?

CHIDEYA: I was asking Professor Ogletree. You can follow up.

Prof. OGLETREE: If you're asking me about California, my home state, it's a disaster because you're seeing it at the University of California at Berkeley, at UCLA, and many of these other schools the complete elimination of any significant numbers of African-American and Latino students in college or in the graduate schools.

You see at the public school system the same kind of re-segregation as a result of Proposition 209. And Ms. Browne said uplifting, that the argument is uplifting - are you kidding? If you go to Roxbury or South Central Los Angeles or you go to Anacostia in D.C., or South Seattle or Compton, tell those children that this was a good argument yesterday and your life's going to be saved.

If you look at poor and black and brown children throughout America, what the Supreme Court seemed to be saying yesterday was that it's the beginning of the end of what Brown meant 50 years ago. And I have to say that this was the most depressing moment that I have had as a lawyer in seeing the court try to be blind about race as opposed to seeing how do we include people in a positive way as opposed to excluding people, which segregation has done. It was a bad argument yesterday, and I rue the day that we return to the segregation that was so pervasive 50 years ago.

CHIDEYA: All right. Ms. Browne and then Professor Ogletree, we have a minute left. Is there anything wrong with segregation as long as the government doesn't advocate it? Ms. Browne.

Ms. BROWNE: Well, segregation is a term of legal art. What it means is that the school districts have intentionally separated the students on the basis of race. Here, what we have in the Meredith case is where the district intentionally continued a desegregation order that had been discharged. And the use of race had been limited to remedy past discrimination but yet the school district decided to continue this desegregation.

What we need to do is to ensure that all the students, even the disadvantaged students, have an equal educational opportunities, and that's not going to happen when we have school districts that are spending $80 million a year to bus students around…

CHIDEYA: I'm going to have to let -

Ms. BROWNE: …(unintelligible)

CHIDEYA: Professor Ogletree, is there anything wrong with segregation, very briefly, if the government doesn't explicitly advocate it?

Prof. OGLETREE: I think what's wrong with it is that it happens to be this concentrated poverty. Segregation on the basis of race also - since you also do segregation on the basis of poverty. And what we will see is a re-segregated America in public education, and all of our children will suffer from that.

CHIDEYA: All right. We've been speaking with Harvard law professor Charles Ogletree and Sharon Browne of the Pacific Legal Foundation. Thank you both so much for joining us.

Ms. BROWNE: Thank you.

CHIDEYA: All right. Coming up, rapping for your freedom: A police officer's request puts a strange spin on justice. And Sean Bell was gunned down hours before saying I do. His fiancée speaks out.

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