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Revisiting Brown Using Common Sense

By Dennis Byrne

"The premise is laid for the resegregation of America and the denial of opportunity. ... Inheritance and access will not be counterbalanced by equal protection." - the Rev. Jesse Jackson on the Supreme Court decision that race alone cannot be used to assign students to schools.

Oh, baloney. It does nothing of the sort, and Jackson knows it. So do the ideologues that are piling on the court's 5-to-4 majority with veiled predictions of a return to the days of Jim Crow and the intentional legal discrimination against African-Americans. According to these doomsayers, the landmark case, Brown v. Topeka Board of Education, which banned racial segregation in schools, has been knifed. Hooded cross-burners to follow.

If anything, the Court's decision voiding racial assignment plans in Louisville and Seattle affirms and polishes Brown by extending the equal protection provisions of the Constitution's 14th Amendment beyond minorities, to everyone, including white students. The clarification was long in coming.

To be sure, Brown was aimed at protecting African-American students from legally enforced discrimination based on race. Chief Justice Earl Warren's court in Brown properly focused on desegregation's damage done to minority students as it proclaimed, "Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other 'tangible' factors may be equal."

The ruling's bedrock--the 14th Amendment--also in its historical context was directed at protecting the rights of African-Americans as they were emerging from slavery. No thought, it seems then, was given to the idea that more than a century later the rights of the majority also needed protecting.

Despite the Amendment's historical context, its words can only mean that they have universal application: no state shall "deny to any person within its jurisdiction the equal protection of the laws." [Emphasis added] How can that be read as anything other than a protection for every person? How can the words possibly be twisted to mean that some people are protected against racial discrimination while others are not?

If anything is jeopardized by Thursday's high court decision, it is a number of nutty decisions following Brown, such as Swann v. Charlotte-Mecklenburg Board of Education, which found nothing wrong with busing children miles away from their neighborhood schools to achieve a bureaucratic will-of-the-wisp of complete racial integration. One faulty federal court decision followed another, turning federal judges into local school administrators, a job surely never foreseen by the Founding Fathers.

Brown removed obstacles to equal educational opportunity for African-Americans, an admirable and highly contentious goal at the time. It was absolutely the right decision. In that decision, Warren wrote that the times required desegregation, rejecting the argument that the 14th Amendment didn't apply to public school desegregation because its drafters didn't have public education in mind. In actuality, they didn't because the whole idea of public and compulsory education was just aborning. Just so, today's Supreme Court justices had to consider the context of today; Brown's justices could never conceive of a day when American society would be inflicted by a proliferation of government-mandated racial quotas.

Today's circumstances--the undeniably improved racial climate and the mainstreaming of significant numbers of African-Americans--required a purer reading of the 14th Amendment. Common sense suggests, as Chief Justice John Roberts wrote, that the way to stop racial discrimination is to stop discriminating.

If that's not plain enough, we might just listen to each other. In the days of Brown, liberals were the ones who argued that there should be no discrimination based on skin color. Racists said discrimination was just fine. Today, conservatives are upholding the principle of equal protection under the law, while liberals sound as if they would, well, return to the days when skin color mattered a lot. Talk about role reversals.

Dennis Byrne is a Chicago Tribune op-ed columnist.

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