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On Thursday, the U.S. Supreme Court made the re-segregation of U.S. public schools a strong possibility.

Maddeningly, it did so in language drawn from the 1954 Brown v. Board of Education case, which outlawed school segregation and overturned the earlier Plessy v. Ferguson principle of “separate but equal” treatment of the races, a principle that created a de facto pattern of racial apartheid in much of the United States, especially the South and Southwest.

At issue were two widely separated public school districts–Seattle, Wash.(Parents Involved v. Seattle School District) and Louisville, Ky. (Meredith v. Jefferson County School Board)–and their voluntary plans to promote racial and ethnic diversity in their schools by pupil assignment.

In Seattle School District 1, there had never been a history of legal racial discrimination. The “white majority” vs. “black majority” schools were caused by neighborhood housing patterns. The majority of Seattle whites still live north of downtown and the majority of Seattle blacks still live south of downtown.

The Seattle plan allowed parents and students to choose different public schools, but if too many of one race picked a particular school, a “tie-breaker” factor could be used to deny a first choice in order to promote racial diversity in the classroom. In a recent year, 210 white students and 90 non-white students were denied their first choice of schools under the plan.

The Louisville case was somewhat different. Jefferson County School District is coterminous with Metro-Louisville (combined city-county government). Before 1975 (yes, it took that long for Brown to be enforced in much of the country), the schools were officially segregated by race.

From 1975 to 2000 the U.S. Supreme Court compelled Louisville to integrate its schools and used bussing out of neighborhoods to do so, to the anger of many parents. In 2001, when the legal requirement was lifted, Louisville created its current voluntary plan in order to keep from re-segregation based on housing patterns.

There are now some slightly integrated neighborhoods in Jefferson County, Ky., but the vast majority of people living in the West End are African-American and even more of those living in the East End are white. My family lives voluntarily in a downtown neighborhood in which whites are a minority of about 35 percent.

The Louisville plan, which has widespread parental and student support, gives students a choice of schools, with first priority going to schools in their neighborhoods. “Magnet” schools and other special programs have no geographic area. Schools are assigned based on numerous factors, including grades to get into magnet programs or schools with honors programs.

But, race is one factor in assignment in order to prevent re-segregation. Schools seek to keep black enrollment from falling below 15 percent or getting above 50 percent of student population, so that the public schools approximate the 34 percent of the population that African-Americans make up in Jefferson County.

The Supreme Court struck down both plans. Four justices–Scalia, Alito, Thomas and Chief Justice Roberts–gave a plurality opinion claiming that race could never be used constitutionally in school assignment, even to promote racial diversity.

Four justices, Breyer, Souter, Ginsburg and Stevens, in a dissenting opinion of unusual length written by Justice Breyer, upheld the legality of the case, claiming that one could not ignore the history of segregation in this country and that “decisions based on race” to promote diversity and equality are very different from “decisions based on race” designed to promote racial supremacy.

Justice Kennedy wrote a narrow concurring opinion, giving the 5-4 majority the power to strike down these plans, but Justice Kennedy dissented from the Roberts’ plurality’s view that race could never be a deciding factor. This leaves school boards across the nation scrambling to find ways to promote racial diversity that would meet Kennedy’s tests. His suggestions, such as changing the geographical boundaries of school districts, have been tried and failed.

We in Louisville now live in fear that our children will go to re-segregated schools. One way around this, at least for the foreseeable future, would be if class were substituted for race in school assignment.

After all, the average income in Louisville’s black majority neighborhoods is much smaller than the average income in its white majority neighborhoods, especially in the affluent East End. Affirmative action by class would appear to pass even the new conservative majority’s constitutional interpretation and would create the needed diversity in schools.

Whatever we do, however many headaches it causes our local school boards, we cannot simply accept re-segregation.

For much of U.S. history, the judicial branch of our government, led by the Supreme Court, was the most regressive branch, defending slavery, defending the rich over the poor, defending corporations against workers, etc.

Only from the mid-1930s to the late 1970s was the court a friend to the poor. Only from 1954 until 1980 was the court strongly on the side of racial justice–something which began to be eroded with the judicial appointments of Ronald Reagan and both Bushes.

Now, the court is clearly, if narrowly, again against the creation of a just society. We must be creative in our response, but we must not let this wrongheaded decision stand in our way.

Jim Wallis likes to say that racism is “America’s original sin,” since the nation was founded on the attempted genocide of one racial group and the chattel slavery of another. (Later, injustices to Asians and other ethnic minorities were added, too.) That original sin reared its ugly, and institutional, head again this week. But sin does not have the last word unless we let it.

Michael L. Westmoreland-White, is a peace activist and educator in Louisville, Ky. This column appeared originally on his blog.

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