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The Power of Now
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Fifty eight years ago, the U.S. Supreme Court issued perhaps the most important decision in its history. In Brown v. Board of Education, the Court struck down segregated schools as unconstitutional. At the heart of this decision was a powerful idea: students of different races will thrive together when they learn together. Today, there is no dispute that diverse schools, from kindergarten through college and beyond, strengthen student experiences. Both in the way they unite students from different racial backgrounds and the way that those students thrive academically, diverse schools represent the promise of Brown.
Sadly, however, fulfillment of Brown’s promise is at greater risk than perhaps ever before.
Despite some notable exceptions, federal courts have been less aggressive in enforcing their own mandates in court-ordered desegregation cases. And research shows that in many schools districts, disturbing patterns of re-segregation have once again separated students. A recent New York Times article on segregated schools framed the problem from the perspective of students who are directly affected. When asked about their hyper-segregated schools, students noted that racially-isolated learning environments do not prepare them for the real world and suggested that their schools would be much better if they were more diverse. Like those students, LDF understands that diverse learning environments can better prepare young people to thrive in our increasingly global society.
LDF is working on several fronts to make these opportunities available. Throughout the country, LDF continues to litigate long-standing school desegregation cases that remain open in school districts that have not yet eliminated the lingering effects and disparities resulting from once-sanctioned legal segregation. By leading in the education policy arena, LDF works to promote diversity and equal educational opportunity through legislative proposals on Capitol Hill and policy initiatives and calls for stronger enforcement by the U.S. Department of Education and Department of Justice. And through its work on the School-to-Prison-Pipeline, LDF seeks to replace punitive, exclusionary school discipline polices that disproportionately impact students of color with common-sense alternatives that foster safe, healthy and inclusive learning environments that improve academic achievement. All of these efforts further the mandate of Brown.
In addition, LDF is involved in two important cases in which the principles underlying Brown are directly under attack.
Fisher v. University of Texas at Austin is the first federal litigation challenging the use of race in university admissions since the Supreme Court’s 2003 decision upholding the race-conscious admissions policy at the University of Michigan Law School. In the Michigan case, Grutter v. Bollinger, the Court affirmed the tangible benefits of diversity in higher education and noted the importance of maintaining visible pathways to leadership for all students – both for campus communities, and for our country as a whole. That holding, along with the values that it articulated, is being jeopardized by the Fisher case. Fisher involves a rather unique undergraduate admissions at a public university – a “blended” approach to admissions that includes both facially race-neutral and race-conscious components, including the “Top Ten Percent Plan” that guarantees admission for the top ten percent of high school graduates statewide. But the goal of this lawsuit is much broader. It seeks to eviscerate the Supreme Court’s bedrock constitutional holding that the educational benefits of a diverse student body are a compelling interest that colleges and universities may pursue through narrowly-tailored, equal opportunity policies. A negative ruling in Fisher could have far-reaching effects. The case could be decided narrowly in a way that would affect only UT Austin or it could be decided more broadly, in a way that affects all institutions of higher education that receive federal funding. And its effects could cascade far beyond higher education to threaten race-conscious efforts to promote inclusion in other areas, such as private employment and contracting.
In each stage of the Fisher litigation leading to the Supreme Court, LDF has represented the Black Student Alliance at UT Austin, raising the students’ concerns about racial isolation on the campus of a flagship state university. And LDF is now leading a coalition of civil rights and social justice organizations who will submit amicus curiae (“friend of the court”) briefs in defense of diversity in higher education. The case will be argued before the Supreme Court this fall.
On the K-12 education front, LDF filed an important amicus brief in Doe v. Lower Merion School District, the first student assignment case to reach the Supreme Court since its decision in Parents Involved in Community Schools v. Seattle School District No. 1. In Parents Involved, the Supreme Court struck down student assignment plans that involved considering the race of individual students; but the Court also affirmed the importance of diversity and noted that facially race-neutral plans that take general recognition of race (such as using neighborhood racial demographics to draw student attendance zone boundaries) are presumptively constitutional. Yet, when the Lower Merion School District developed just that type of plan, it was sued by parents alleging intentional race discrimination. LDF’s amicus brief highlighted the important distinction made in Parents Involved, and helped to persuade the court of appeals to uphold the plan. The Supreme Court will soon decide whether to hear this case, as well.
These challenges on multiple fronts come at a critical juncture in American history. In our increasingly pluralistic society, recognizing, appreciating and aggressively pursuing diversity has never been more important. The late John Payton, LDF’s sixth President and Director-Counsel, often noted that “American democracy thrives when it embraces all of our voices.” This principle served as the basis for the Supreme Court’s landmark decision in Grutter v. Bollinger and harkens back to the key principles of Brown. Fulfilling this promise is the challenge of the twenty-first century. And LDF stands ready, as it has in the past, to meet this challenge.
On May 17, 2012, LDF joined other civil rights organization to co-sponsor the second national conference of the National Coalition on School Diversity, which LDF helped to found in 2009. Entitled “Advancing the Legacy of Mendez and Brown,” the conference was designed to highlight both the opportunities and challenges that have arisen with respect to promoting educational diversity, inclusion and opportunity in recent years. LDF attorneys served as speakers and moderators on multiple panels.