Testing Ashcroft
Undoing a wrong.

Mr. Clegg is general counsel of the Center for Equal Opportunity
February 16, 2001 9:20 a.m.

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-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.