THE END OF BROWN. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" was the vacuous tautology with which Chief Justice Roberts ruled modest attempts at local desegregation unconstitutional. Somehow, I don't think that those who applauded Roberts will be invoking this phrase to the re-segregation of Tuscaloosa's once integrated school system:

After white parents in this racially mixed city complained about school overcrowding, school authorities set out to draw up a sweeping rezoning plan. The results: all but a handful of the hundreds of students required to move this fall were black — and many were sent to virtually all-black, low-performing schools. Black parents have been battling the rezoning for weeks, calling it resegregation. And in a new twist for an integration fight, they are wielding an unusual weapon: the federal No Child Left Behind law, which gives students in schools deemed failing the right to move to better ones.

“We’re talking about moving children from good schools into low-performing ones, and that’s illegal,” said Kendra Williams, a hospital receptionist, whose two children were rezoned. “And it’s all about race. It’s as clear as daylight.”

You might think that such a plan would be plainly unconstitutional. But the Court's conservatives have, since Milken v. Bradley in 1974, supported the obvious fallacy that drawing racially homogeneous school districts does not represent discriminatory "state action." (As Breyer also pointed out in Parents Involved, given the extent to which the state was deeply involved in school district and residential segregation, the distinction between "de facto" and "de jure" discrimination is essentially meaningless.) As William Douglas noted in his acid dissent in Milken, the conservative endorsement of both locally-funded schools and segregated school districts means that they're not in retreat so much from Brown as from Plessy; after all, the latter of which at least required that racially segregated schools be "equal." Under current Supreme Court doctrine, supported by allegedly "color blind" conservatives, cities like Tuscaloosa can have segregated and unequal schools as much as they want as long as they're careful to do it before the formal assignment of pupils.

Maybe the current Court will see this plan as going too far. Maybe they will find a violation of No Child Left Behind. I know how I'm betting.

--Scott Lemieux