|
 his
week, three conservative civil-rights organizations — the Center
for Equal Opportunity, American Civil Rights
Institute, and the Institute for Justice — wrote to Attorney
General John Ashcroft, bringing to his attention a first test for
the new administration's civil-rights policy.
The letter is about a case called Belk v. Charlotte-Mecklenburg
Board of Education. In it, a North Carolina school district
refused to admit Christina Capacchione into a magnet school because
she is white and all the "non-black" slots were full. Her father
sued on her behalf and the federal trial judge ruled in her favor.
The school district appealed to the U.S. Court of Appeals for the
Fourth Circuit.
On March 8, 2000, the Justice Department's civil-rights division
filed a friend-of-the-court brief arguing that the court below had
erred. The Clinton administration argued, first, that the trial
judge had not followed the correct procedures in his preliminary
determination that the school district had been fully desegregated;
if the school district was still segregated, then there was nothing
wrong with remedying the situation with race-based student assignments
that guaranteed racial balance. Then the government's brief went
further, and said that even if the school district is fully desegregated,
it is perfectly all right for it to continue to assign students
on the basis of their skin color.
The three-judge panel of the Fourth Circuit agreed with the Justice
Department in a 2-1 decision (all three judges were Clinton appointees).
But the rest of the judges on the circuit are apparently not so
sure, and on February 27 the entire Fourth Circuit will have the
case argued before it.
This is an extremely important case. It involves two issues: (1)
the determination of when a formerly segregated school system achieves
unitary (desegregated) status, and (2) whether students may be assigned
on the basis of race once a school system has become unitary. The
Justice Department's brief is wrong on both issues presented in
the case, and especially on the latter.
On the first issue, there are literally hundreds of cases across
the country in which school districts remain under court-
| “In
a perfect world the department would file another brief,
reversing its position.” |
|
ordered
desegregation plans. In the vast majority of them, there is little
doubt that the school systems are no longer segregated, and the
Supreme Court has made clear over the past decade that, in those
circumstances, control for running the systems should be returned
to the local school boards. Yet the Justice Department has repeatedly
opposed this return of power. The Fourth Circuit — made up
of Maryland, West Virginia, Virginia, North Carolina, and South
Carolina — has jurisdiction over many of the schools still
under court-ordered desegregation plans.
The second issue is equally important and the Justice Department's
position on it is even more untenable. Assigning children to schools
on the basis of race is dubious enough when undertaken in the name
of desegregation, but when a school system has desegregated, there
is no compelling reason to tell a child — like Christina Capacchione
— that she cannot attend a particular school because she has
the wrong skin color. Moreover, if school districts can discriminate
on the basis of race and ethnicity in admissions, then so can colleges
and universities — another critical legal battle now being
fought.
In a perfect world, therefore, the department would file another
brief, reversing its position. Because the civil-rights division
does not yet have a confirmed head, it may not be possible to do
this. But there is another, easier, and less controversial course:
simply withdraw the brief already filed, and have the government
sit out the case. A straightforward request to the court that the
department be allowed to withdraw a brief filed almost a year ago,
in a case in which it is not even a party, in light of the new administration's
desire to reevaluate the division's stance on the difficult issues
presented, is a perfectly prudent and reasonable thing to do —
especially when an en banc court is hearing a case of this importance.
That's all the three conservative organizations are urging Attorney
General Ashcroft to do. It's a reasonable enough request. And if
the brief isn't withdrawn, the Bush administration will have failed
its first civil-rights test.
|
