[Congressional Record Volume 153, Number 107 (Friday, June 29, 2007)]
[Senate]
[Pages S8739-S8740]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        SUPREME COURT DECISIONS

  Mr. KENNEDY. Madam President, over half a century ago, in Brown v. 
Board of Education, a unanimous Supreme Court stuck down laws requiring 
racial segregation in our public schools. Yesterday's decision limiting 
voluntary efforts to desegregate public schools is false to Brown's 
promise of equality by making it far more difficult for local school 
boards to bring students of different races together in the classroom.
  The landmark decision in Brown v. Board of Education called on us to 
honor not only the requirements of the Constitution but also of our 
consciences. America was made stronger as a result. Although the Brown 
decision initially met with intense resistance in many parts of the 
country, it eventually came to be recognized as one of the Court's 
finest hours.
  Yesterday's decision, however, makes it far more difficult to achieve 
equal educational opportunity for children of all races. Brown was a 
giant step in ending racially segregated public schools, but achieving 
integration takes more than a court decision. It takes good will, 
vision, creativity, common sense, and a firm commitment to the goal of 
educating all children, regardless of race. Above all, it takes a 
realistic assessment of local communities to determine what will work 
to bring students together.
  That challenge is difficult to meet, because in many parts of the 
Nation, neighborhoods continue to be highly segregated by race and 
national origin. Without specific efforts by local school boards to 
promote diversity, public schools often reflect the same racial 
segregation as the neighborhoods around them. As over 500 prominent 
social scientists who have studied residential segregation explained in 
their brief in the Seattle and Jefferson County, KY, cases, without 
voluntary efforts, neighborhood schools cannot achieve the integration 
that we as a society recognize is so important.
  The benefits of integration, both for individual students and for 
society, are enormous. Children who participate in classes attended by 
students of many races enjoy greater parental involvement in public 
schools, and greater cross-cultural understanding. It helps close the 
racial gap in education by helping African-American children achieve 
greater academic success. One of the Nation's leading conservative 
judges, Alexander Kozinski, described Seattle's integration plan as an 
``eminently sensible'' ``stirring of the melting pot,'' which helps 
children learn to interact as citizens of our common society. Without 
integrated schools, children will not learn these important lessons. 
That's a result we cannot afford.
  Local school boards such as Jefferson County's have transcended the 
legacy of Jim Crow segregation to achieve not only enhanced 
opportunities for students but greater cooperation, participation, and 
genuine friendship between children of different races. We should honor 
that achievement. We should also ensure that school districts such as 
Jefferson County's, that do not want to return to the days of all-White 
and all-Black schools, receive the support and information needed to 
continue that success.
  The Court's ruling undermines the important goal of racial 
integration by ignoring the real world consequences of its decision. 
Ironically, Chief Justice Roberts, who helped form the majority on this 
decision, stated at his confirmation hearing that this was something he 
would not do.
  My first question to John Roberts at his confirmation hearing was 
about Brown v. Board of Education. I asked whether he agreed that the 
Court in Brown properly based its opinion on ``real world 
consideration[s] . . . at the time of its decision.'' ``Certainly, 
Senator,'' he responded, ``you have to look at the discrimination in 
the context in which it is occurring.''
  Yet his plurality opinion in yesterday's decision ignores the context 
of Brown that Chief Justice Roberts said at his hearing was so 
important. In fact, Chief Justice Roberts would have gone even further 
than a majority of the Court and argued to outlaw virtually any use of 
race in voluntary efforts to integrate public schools.
  The central tragedy in Brown was society's abandonment of African-
American children to second-class schools. Every child relegated to 
such schools is harmed. Chief Justice Roberts' opinion disregards that 
reality by defining the only harm in Brown as the consideration of race 
in assigning children to school. The harm to these children is not less 
just because their segregation is the result of housing patterns rather 
than discriminatory laws. The cruel irony of the Chief Justice's view 
is that it would undermine Brown by ensuring that thousands of minority 
children would continue to attend segregated schools. Fortunately, a 
majority of the Supreme Court understood that we cannot afford to 
ignore the harm to students in segregated schools.
  Despite professing moderation and promising to uphold precedent, the 
Court's newest members have already voted to radically limit the Clean 
Water Act. They have argued that the

[[Page S8740]]

Environmental Protection Agency has no power to control air pollution, 
and overturned a 7-year-old precedent on a woman's right to choose. 
More recently, they cut back on workers' ability to hold companies 
responsible for pay discrimination, ignoring the intent of Congress by 
imposing unreasonably narrow deadlines for pay discrimination claims. 
But their decision striking down voluntary integration is the most 
sweeping proof that they failed to be candid about their extreme views 
when they testified before the Senate in their confirmation hearings.
  Fortunately, the views of the newest Justices, which would have made 
voluntary integration almost impossible, were not shared by a majority 
of the Court. The majority recognized that local school boards have a 
compelling interest in preventing de facto racial segregation in public 
schools, so long as they do so in a way that is narrowly tailored to 
meet that interest. Although the majority wrongly concluded that the 
carefully crafted programs in Seattle and Jefferson County, KY, were 
not permissible, it made clear that local school districts still have 
the ability to create racially inclusive public schools.
  Congress is not powerless to address this important issue. We should 
support school districts that desire to achieve diversity in their 
public schools within the limits of the Court's ruling. I plan to hold 
hearings in the Committee on Health, Education, Labor, and Pensions on 
the effects of the decisions. It is my hope that those hearings will 
shed new light on the best way to support schools that want to continue 
our national progress toward integration in public education.
  The words of Brown ring as true today as they did half a century ago. 
On May 17, 1954, the Supreme Court declared that ``education is perhaps 
the most important function of state and local governments. . . . It is 
the very foundation of good citizenship. . . . In these days, it is 
doubtful that any child may reasonably be expected to succeed in life 
if he is denied the opportunity of an education,'' and that opportunity 
``is a right which must be made available to all on equal terms.''
  These words could have been written today. It is up to us to 
revitalize them for the years ahead. The promise of Brown will never be 
fulfilled until America opens opportunity to all, not just to some.
  Brown showed that even against great odds, we can change America for 
the better. We must renew our commitment to genuine educational 
equality for all children in America. Despite yesterday's decision, we 
must not falter, now or ever. Separate can never be equal. We must 
continue the racial progress of the last 50 years. Only then will 
America truly become one Nation, under God, indivisible, with liberty 
and justice for all.

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